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CONSUMER GRIEVANCE REDRESSAL FORUM CENTRAL REGION (Formed under Section 42(5) of the Electricity Act 2003) 220 kV Substation Compound, HMT Colony P.O. Kalamassery, Pin – 683 503 Phone No. 0484-2556500 Website: cgrf.kseb.in, Email: [email protected], CUG No. 9496008719

Present (1) Smt.Soudamini B Chairperson (2) Smt. S.N.Sheeba. Member (3) Sri. Jefrin Manuel Member

Petitioner Smt. K.V. Mariamma, M/s. Kallungal Trading Company, Oorakkad, Malayidamthuruthu P.O., Ernakulam, Pin – 683 561

Respondent 1) The Asst.Exe. Engineer, Electrical Sub Division,

2) The Asst. Engineer, Electrical Section, KSEBL, Edathala.

======No.CGRF-CR/OP No.32/2020-21 Date : 17-12-2020

O R D E R Background of the case: The petitioner, Smt. Mariamma.K.V., M/s Kallungal Trading Company, Oorakkad, Malayidamthuruth P.O., Ernakulam – 683561, is an industrial consumer with Consumer No.-17548 and a Contract Demand of 100 kVA, under the jurisdiction of Electrical Section, Edathala. The petitioner challenges the audit bill she received for an amount of Rs.3,32,123/- by the respondent on 07- 08-2020 which directs to pay the bill on or before 26-08-2020. The petitioner states that the demand is assessed under the heads of Deemed HT Demand which has been assessed for the period from 01/2016 to 11/2016 and the Voltage Surcharge for the period from 05/2017 to 02/2018. Thus the complainant submitted a detailed objection against this bill informing that they are permitted 2 to use up to 110 kVA. In the place of a single phase meter, the complainant was insisted to change to three phase meter and thus connected with a ToD meter.

The petitioner argues that there is a serious latch by the licensee in assessing the demand within three years from 01/2016 and therefore the bill is hit by the principles of Law of Limitation. The petitioner argues that the discrepancies found by the licensee while auditing was for a period up to 17-04- 2017; but was issued only on 07-08-2020, which is after three years from the due date. Also the demand for voltage surcharge amounting Rs.91,875/- was for a period assessed from 05/2017 to 02/2018 and the demand was issued only on 07- 08-2020 and that too without conducting any proper inspection. The petitioner also states that she was issued with a penal bill alleging tariff misuse on 12-07- 2016 and demanded Rs.1932613/- and ultimately it was concluded in Complaint No.236/2016 by the Appellate Authority reducing it to Rs.613262/-; thus concluding that the demand was an allegation of exceeding the usage of the permitted kVA which is not legally sustainable in the absence of any cogent evidence. The petitioner also states that as per Reg.153 (15) of the Electricity Supply Code, 2014, “any unauthorized additional load in the same premises under the same tariff shall not be reckoned as unauthorized use of electricity and for the exceeded usage of additional load penal charges were collected along with the regular bills”. The petitioner states that the demand was made without any proper inspections and calculations and that the licensee failed in issuing any notice informing the excess usage of additional loads and directing to regularize the additional loads.

Subsequently, statement of facts was called for and the same was submitted by the respondent on 25-11-2020. The Forum afforded an opportunity to hear the Petitioner and Respondent on 30-11-2020. Both the petitioner and the respondent were present for hearing.

Version of the Respondent: The complainant is a consumer under Electrical Section, Edathala bearing Consumer No.-17548 under LT VI A tariff with a connected load of 99KW and 3 contract demand 100 kVA. Date of connection of this consumer is on 26-02- 2003.

The Consumer was originally having Consumer No.-17548 under Ele. Section, Kizhakkambalam and has been transferred to Ele. Section, Edathala during bifurcation on 28-04-2017 with Consumer No.-1157503000158. On 12- 07-2016, the APTS, Thrissur, inspected the premises of Consumer No.-17548 and found that the consumer is having a connected load of 148 KW than the Sanctioned 99 kW. Therefore, a provisional bill was issued for Rs.19,32,613/- under Section 126 of Electricity Act, 2003, for a period of 12 months preceding the date of inspection. Later, the final assessment was served for Rs.6,13,262/- on 12-08-2016. The consumer filed an Appeal vide No.236/2016 before the Appellate Authority. As per the Order No.AP-236/2016/order/2797/ dated13- 01-2017, the final assessment Order No.DB/inspection/KBLM/16-17/81 dated 12/08/2016 issued by the Assistant Engineer, Ele. Section, Kizhakkambalam, was declared as in order and the Appellant challenged the order before the Hon. High court of Kerala viz. WP(c) No. 4813/2017. The consumer remitted 50% of the final assessment ie.Rs.3,06,631/- and the balance amount is 3,06,631/-.

On 07-08-2020, based on the Audit report of RAO, a short assessment bill for Rs.332123/- was served to the consumer by the Assistant Engineer, Ele. Section, Edathala. This include deemed HT demand charge up to 17-04-2017 for Rs.240248/- and Low Voltage surcharge from 05/2017 to 02/2018 for Rs.91875/- . Thus the total short assessment comes to Rs.3,32,123/-.

The complainant being an LT consumer, the Contract Demand of the consumer shall not exceed 100 kVA as per Regulation (8) of the Kerala Electricity Supply Code, 2014. Since the contract demand of the complainant is 100 kVA, he is bound to limit the RMD within 100 kVA. But the complainant exceeded the contract demand regularly which attracted Deemed HT charges vide clause-9 of the General conditions for HT and EHT Tariff, under Part-B – HT and EHT Tariff of the Tariff Order dated 14-08-2014, and low voltage surcharge as per Regulation 9 of Electricity Supply Code 2014. 4

Clause-9 of the General conditions for HT&EHT Tariff, under Part-B - HT& EHT Tariff of the Tariff Order dated 14-08-2014 provides that “In the case of Deemed HT consumers, the tariff applicable shall be demand charges of respective HT category and energy charges of respective LT category” and Regulation 9 of Electricity Supply Code 2014 states that “consumers availing supply at voltage lower than the one specified in regulation 8 for the respective limits of connected load or contract demand shall pay low voltage supply surcharge to the licensee at the rates as approved by the Commission from time to time in the tariff order”.

As per the tariff order dated 17-04-2017 vide Order No.1007/F & T/KSERC/2016 dated 17-04-2017, the low voltage surcharge applicable to the complainant is 150/kVA/month. The KSEB Ltd, as per its Order dated 31.07.1999 stipulated that “Connection at low tension shall be provided for connected load not exceeding 150kVA and where connected load exceeds 150kVA but not exceed 3000 kVA, the connection shall be provided at High tension”. This is in force till the implementation of the Kerala Electricity Supply Code, 2005. As per the sub Regulation (5) of Regulation (4) of the Kerala Electricity Supply Code 2005, new connections of LT supply will be given for connected load up to 100 kVA only. New connections with connected load above 100kVA will be given only at HT. The Commission vide the Kerala Electricity Supply Code (fourth amendment) Regulation 2008, permitted the existing consumers as on the date of implementation of the Kerala Electricity Supply Code, 2005 on 02.03.2005, to operate up to a load of 150kW. The Commission vide the letter dated 16.12.2008 further clarified that, all the consumers existing as on 02.03.2005, i.e., on the date of implementation of the Kerala Electricity Supply Code, 2005 may be permitted to operate at LT up to 150 kVA.

Subsequently, the Commission repealed the Supply Code, 2005 and notified Supply Code 2014 on 31.01.2014. As per Regulation 11 (1) of Supply Code, 2014, the maximum load that can be connected at LT is limited to 100kVA. Further as per the proviso to Regulation 11(1), „low tension consumer who, as on the date of implementation of the Kerala Electricity Supply Code, 5

2005, had a sanctioned load exceeding the limit of 100kVA, may be permitted to continue at LT, subject to realization of low voltage supply surcharge, to operate with the same sanctioned load at the same voltage level of supply until an upward revision of connected load is sought for by the consumer.

The Commission vide the Kerala Electricity Supply Code (Removal of difficulties) third order, 2014, the following proviso has been inserted.

“Provided that the consumers existed on the date of implementation of the Kerala Electricity Supply Code, 2005, and who were permitted to operate at low tension up to a connected load or contract demand of 150kVA in accordance with clause (b) of sub-regulation (5) of the regulation 4 of the Kerala Electricity Supply Code(Fourth Amendment) Regulations, 2008) shall be allowed to operate at the same voltage level and connected load or contract demand subject to realization of low voltage surcharge until an upward revision of connected load or contract demand is granted on application submitted by the consumer or become otherwise necessary.”

Since the complainant‟s RMD has been exceeding more than 100 kVA from 2016, he is liable to pay „Deemed HT charges‟ up to 16-4-2017 and from 17-4-2017 onwards the complainant is liable to pay low voltage surcharge.

The above position was upheld by the Hon‟ble KSERC in its Order in Petition OA No. 26/2019 which was filed as per the direction of Hon‟ble High Court in WP (c) 39396/2015. The KSERC, in compliance of the judgment of the Hon‟ble High Court dated 24th June 2019 in WP(C) No. 39396 of 2015, and after examining the issues raised by the petitioner as per the provisions of the Electricity Act, 2003 and the Regulations notified by the Commission, has issued the following orders for the compliance of the petitioner and the respondent KSEB Ltd. (1) The petitioner as a consumer having connected load and recorded maximum demand more than 100 kVA, has to pay low voltage surcharge as determined by the Commission as per the Regulation 9 of the Kerala Electricity Supply Code, 2014, to continue availing supply at LT. 6

(2) Till the Commission explicitly determined the low voltage surcharge vide the tariff order dated 17.04.2017, the petitioner has to pay electricity charge, at the rate applicable to „Deemed HT consumers, as per the “clause-9 of the General Conditions for HT and EHT tariff under Part-B – EHT 19and HT Tariff of the Tariff Order dated 14.08.2014, i.e., demand charges applicable for HT-I (A) Industry and energy charge at LT-IV (A) Industrial tariff. (3) With effect from 18.04.2017 onwards, in addition to the electricity charges approved by the Commission for LT Industrial consumers including the demand charge and energy charge, the petitioner has to pay low voltage surcharge also as determined by the Commission from time to time.

KSEBL is entitled to recover the undercharged bills as per Regulation 134 Sub Regulation 1 of Electricity Supply Code, 2014 which states as follows:

If the licensee establishes either by review or otherwise, that it has undercharged the consumer, the licensee may recover the amount so undercharged from the consumer by issuing a bill and in such cases at least thirty days shall be given to the consumer for making payment of the bill.

Analysis and findings:

Having examined the petition in detail, and the statement of facts of the respondent, considering all the facts and circumstances in detail, and perusing all the documents of both sides, the Forum comes to the following observations, conclusions and decisions thereof.

The petitioner is a deemed HT consumer having connected load of 99kW and contract demand of 100kVA with a ToD 3 phase meter installed in the premises. The petitioner is running a manufacturing unit and works as per the orders they receive. In some months, the production will be less and so the electric consumption will be lower and in the other months vice versa. The petitioner received a short assessment bill for Rs.332123/- on 07-08-2020 comprising of deemed HT demand charge for Rs.240248/- and low voltage surcharge amounting to Rs.91875/-. Thus the total amount is Rs.332123/-. The respondent stated that this bill was issued based upon the audit inspection. 7

The petitioner stated that earlier there was an APTS inspection in the premises on 12-07-2016 and detected the total connected load of 148 kW than the sanctioned 99 kW and a penal bill was issued which was subsequently reduced to Rs.613262/- on 12-08-2016. The calculation done for the first APTS bill amounting to Rs.1932613/- dated 16-07-2016 is as below:-

Fixed Charge:- 165 * 300 * 12 * 2 = 1188000 Energy Charge:- (184980 * 5.2) + (10500 * 5.2 * 1.5) + (8700 * 5.2 * 75) * 2 = 2155452 Electricity Duty = 107773 Total = 3451225 Less Paid = 1518612 Net Payable = Rs.1932613/-

However in the subsequent revised APTS bill dated 12-08-2016, the bill amount has been reduced to Rs.613262/- which is seen calculated as below:- Fixed Charge:- 65 * 125 * 12 * 2 = 195000 Energy Charge:- (204180 * 65 * 5.20) / 165 = 418262 Total = Rs.613262/-.

The Forum notices that the Fixed Charge has been reduced from Rs.300/kVA (applicable for HT I category) in the first bill to Rs.125/kVA (applicable for LT IV category) in the second bill. As no details regarding such a reduction in the fixed charge were furnished before the Forum, it is not able to assess the merit of granting the revised rate of Rs.125/kVA. Also the penalization for a period of 12 months commencing from 07/2015 to 07/2016 for the fixed charge of 65 kVA has been done at “two times” the actual value. The energy charge has also been reassessed in this revised bill for the period of twelve months be taking the fraction of connected load viz. 65 kVA divided 3 165 kVA, ie., the Forum realizes that the petitioner has already been penalized from 07/2015 to 07/2016 vide the revised APTS bill dtd. 12-08-2016.

The petitioner remitted 50% of this amount and the balance amount due is Rs.306631/-. As per this APTS inspection, it was presumed that the UAL was existing for a period of 12 months preceding the date of inspection as per the rule; i.e. the UAL was existing from 12/07//2015 to 12/07/2016. It is natural 8 that, due to the using of UAL, the maximum demand during these periods also will be increased. The petitioner was penalized for the UAL during the period from 07/2015 to 07/2016.

The present bill of Rs.332123/- dtd. 07/08/2020 was served for the period from 01/2016 to 11/2016 as demand charge and from 05/2017 to 02/2018 as low voltage surcharge. This disputed bill was generated in view of the Order of Hon‟ble KSERC as per Tariff Order dtd. 14-08-2014. The Reg.9 of the Supply Code, 2014 states as below:-

Reg.9.Low voltage supply surcharge.-

Consumers availing supply at voltage lower than the one specified in regulation 8 for the respective limits of connected load or contract demand shall pay the low voltage supply surcharge to the licensee at the rates as approved by the Commission from time to time in the tariff order.

As per Tariff Order dtd. 14-08-2014, in case of deemed HT consumers, the tariff applicable shall be demand charges of respective HT category and energy charge of respective LT categories. Since the respondent found out that the petitioner had exceeded the RMD in consecutive months from 01/2016 to 11/2016, the demand charge was assessed @ Rs. 300/kVA for the entire RMD and the already paid amount was deducted from this and the balance amount was billed as deemed HT demand charge. In this demand charge, the Forum notices that the period from 01/2016 to 07/2016 is already covered in the earlier APTS bill issued for the period from 12-07-2015 to 12-07-2016 which was caused due to the UAL, i.e. the duplication of charging the petitioner is seen to have occurred by way of the 2 bills viz. APTS bill dtd. 12-08-2016 and low voltage surcharge bill dtd. 07-08-2020 during the period from 01/2016 to 07/2016.

Therefore the Forum finds that it is against the law of natural justice for punishing 2 times for a single offense whatever be the circumstance. In the instant case, the petitioner was already penalized via the APTS bill for the UAL used by him during the period from 01/2016 to 07/2016. The UAL was reflected in the high value of RMD also in the said period as there is no other 9 chance for the increase in the RMD. Hence it is evaluated that the deemed HT charge assessed in the period from 01/2016 to 07/2016 ought to be discarded on the ground that this period was subjected for penalization on account of the basic reason of additional load used in the premises. The Forum finds that it was obligatory from the part of the licensee to have made such a reassessment on receipt of the complaint from the petitioner in the subject matter. It is true that Reg.134(1) of Electricity Supply Code, 2014 permits the licensee to recover the amount undercharged from the consumer by issuing a bill. However that does not prevent the respondent to verify the genuiness of the bills. Under this circumstance, the Forum directs as below.

DECISION:

Considering the above facts and circumstances, the Forum issues the following orders:- 1) The impugned bill is quashed. 2) The respondent may re-assess the disputed bill after eliminating the period in which the APTS bill was issued on 12-08-2016. 3) The respondent is directed to ensure more clarity in the billing section 4) No costs ordered.

The petitioner is at liberty to file appeal before the State Electricity Ombudsman, Charangattu Bhavan, Building No.36/895, Mamangalam - Anchumana Road, Edappally, – 682 024 (Ph: 0484 -2346488) within 30 days of receipt of this order, if not satisfied with this decision.

Dated this 17th day of December 2020

1) Smt. B. Soudamini (CHAIRPERSON)

2) Smt. S.N.Sheeba. (2nd Member)

3) Sri. Jefrin Manuel (3rd Member) 10

Endt. On CGRF-CR/OP No.32/20-21

Smt. K.V. Mariamma, M/s. Kallungal Trading Company, Oorakkad, Malayidamthuruthu P.O., Ernakulam, Pin – 683 561

Copy to: - (1) The Deputy Chief Engineer, Electrical Circle, KSEBL, (2) The Executive Engineer, Electrical Division, KSEBL, Perumbavoor (3) The Asst. Exe. Engineer, ESD, KSEBL, Kizhakkambalam (4) The Asst. Engineer, Ele. Section, Edathala