TAMIL NADU ELECTRICITY OMBUDSMAN
No. 17, No. 19A Rukmini Lakshmipathy Salai, (TIDCO Complex),
Egmore, Chennai-600 008.
Tel: 044 -28411376/378/379 Fax : 044- 28411377
BEFORE THE TAMIL NADU ELECTRICITY OMBUDSMAN
Twenty fifth of June Two Thousand Nine
Present :R. Balasubramanian,Electricity Ombudsman
Petition 8 of 2009
M/s Sree Kumar Textiles Private Ltd,
25 Sree Narayana,P&T Nagar Road,
Visalakshipuram
Madurai-625 014. …………… Appellant
Vs
The Chairman,
Consumer Grievance Redressal Forum
TNEB, Sivaganga Distribution Circle,
Sivagangai ……………. Respondents
The above appeal arises out of the order dated 31-3-2009 of Consumer Grievance Redressal Forum, Tamil Nadu Electricity Board, Sivagangai Electricity Distribution Circle which did not give a final disposal for a petition filed before it on 19-3-2009 for refund of Rs 2,84,800, stating that legal opinion is awaited from its legal cell and more than two months have passed .
This appeal coming up for final orders before the Tamil Nadu Electricity Ombudsman, upon perusing the appeal and the records filed in support thereof and having stood over for the consideration before the Ombudsman till this day, the Ombudsman passes the following order:
ORDER
1. Contentions of the Appellant:
The appellant is the Managing Director of M/s. Sree Kumar Textiles Private Ltd having their manufacturing unit at Poovanthi in Sivagangai District. The appellant had a HT service connection SC No 50 at Poovanthi , which he opted to close down on 20-2-2009 and requested the refund of deposit in the respective account. The refundable amount was worked out as Rs 8,37,271.Prior to refund , the respondent informed in his letter dated 4-3-2009 that a sum of Rs 2,84,800 will have to be deducted from the above refundable amount to adjust for the excess amount paid by the Licensee, way back in 2004, towards the compensation ordered by National Consumer Disputes Redressal Commission.The said excess amount was detected by their audit wing, on the basis of their interpretation of the Orders of the National Consumer Dispute Redressal Commission / New Delhi and the respondent had accordingly issued a notice of recovery of the excess paid sum.The appellant protested against the deduction and received the balance amount of Rs 5,52,471 on 16-3-2009.
Soon after receiving the refund, a petition was presented before the Consumer Grievance Redressal Forum (CGRF) stating that , after a lapse of five years and without any valid authority, the deduction has been made , which is not correct and the said amount of Rs 2,84,800 should be refunded without any further delay and with interest for the delayed period, i.e., from 16-3-2009
The CGRF met on 31-3-2009 , verified all the documents, took note of the fact that a legal opinion has been sought by the Superintending Engineer on this matter and ordered that the CGRF will be able to issue the final orders only after the legal opinion is received from TNEB’slegal cell.The appellant has waited for two months and since the final disposal has not come through, he has opted to file the petition before the Ombudsman
2. Contentions of the Respondent:
The respondent did not file any counter affidavit within the stipulated time, but had sent his representative Thiru D.Pandikumar / Junior Engineer I Grade I / Nelmudikkarai, alongwith all the related documents / files, for the hearing before the Ombudsman on 10-6-2009 . It was informed by the representative that the counter could not be filed by them since the vetting in their legal wing has been delayed.After a detailed perusal of the correspondences in this regard by the respondent to their head quarters , and the clarifications they had received after the CGRF’s disposal on 31-3-2009, the following views have been taken by them on this case:
a)The Court has not specified the interest rate to be adopted above 10 %
b)The rule of limitation of two years under Regulation 21 of the Supply Code is applicable only to the cases where the Licensee is competent to disconnect the service connection for non payment of charges and not for the present case.
c)The compensation paid at 12 % compound interest rate is incorrect and needs to be revised and excess interest paid already has to be recovered.
d)As per Sec 56 of the Electricity Act 2003 and Regulation 21(2) of the Tamil Nadu Supply Code, stands only for arrears of CC charges for Electricity supplied. But this amount is not the arrears for electricity charges. IT IS ONLY EXCESS amount paid to the consumer as per the NCDRC/ New Delhi on calculating the compensation amount. Hence the above said rules will not hold good in this regard.
e)Also as per Regulation (17)(2) Agreement with respect to supply, issues on recovery of charges, the consumer shall be liable to pay the arrears of charges or any other sum due to Licensee
3. Hearing held by the Ombudsman
A hearing was held by the Ombudsman on10-6-2009 to enable the parties to put forth their oral arguments, wherein the appellant was represented by Thiru V.Sathappan, Managing Director of M/s Sree Kumar Textiles and respondent was represented by Thiru D.Pandikumar / Junior Engineer I Grade I / Nelmudikkarai, During the hearing, the appellant explained in depth the happenings from the beginning, the background of their petition before the National Consumer Dispute Redressal Commission / New Delhi, the final order, its content, later developments , closure of their production, surrendering of the HT service connection etc., The respondent produced all the records, including the audit remarks which is the originating point for the disputed recovery, the remarks of their legal cell, accounts wing etc., and left it to the Ombudsman to decide, because they had followed only the directions of their officers.
4. Issues before the Ombudsman
I have heard both parties and perused the documents adduced as evidence by both parties. On a careful consideration of the same, I find that the following issues arise for consideration.
i). Whether the interest rate assumed for computation of compensation originally by the respondent is in line with the orders of the National Consumer Disputes Redressal Commission or as per the interpretation of the audit wing / accounts wing of the Licensee ?
ii). Whether the appellant’s contention that the respondent cannot make this claim as it is time barred under Section 56(2) of the Electricity Act 2003 and Regulation 21(2) of the Tamil Nadu Electricity Supply Code is valid ?
5. Findings of the Ombudsman on the first issue
The crux of the dispute is, whether the interest computed originally by the respondent is in line with the orders of the National Consumer Disputes Redressal Commission (NCDRC) or as per the interpretation of the audit wing / accounts wing of the Licensee ? Let us first look at the background of the complaint filed by the appellant before the NCDRC . Extract from the Order of NCDRC, in this regard reads as below:
“Shorn of frills, brief facts of the case are that the Complainant Textile unit had a 500 KVA three phase electric supply connection from the opposite party. There was a power break down on 3.7.1995 – which restored on 4.7.95 but only on two – phase power supply which was not adequate to run the Complainant’s unit. Complaint of this inadequacy was made to the opposite parties on 5.7.95 and afterwards. Three-phase connection was restored very briefly on 21.7.95 but again on account of tripping on account fo some fault recurrence, the third phase was again lost. It is specifically stated that the fault was not deliberately repaired on account of political consideration. When despite repeated requests, several meetings with the opposite parties, and pointing out specifically nature and place of this fault when nothing was happening and labour was getting restive, three separate write were filed before the High Court on whose specific order three phase connection was restored only on 24.8.95, thus, causing huge losses to the complainant unit on account of continued non-supply of three phase electricity for 52 days, which is a clear case of deficiency which resulted in closure of the unit, loss of production, loss of face in the market when they could not honour their commitment, wages paid to the labour during the closure period and continued to pay minimum charges of electricity on demand. On all these grounds alleging deficiency in service this complaint has been filed claiming Rs.44,51,750/- along with interest of 20% p.a.
The final order reads as below:
As a result the complaint is allowed and the OP is directed to pay, in all Rs.4,71,500/- along with interest @ 10% from the date of filing the complainant, i.e. 15.3.96 along with cost of litigation which we fix at Rs.20,000/- . All these amount shall be paid within six weeks of the passing of their order failing which rate of interest shall go upto 12% p.a.
Now the first question is whether the applicable interest rate ordered for the compensation amount fixed by NCDRC is 10 % or 12 %. The said order by NCDRC was passed on 19-1-2004 and the compensation amount has been adjusted in the bill for September 2004. In as much as it is very clear that if the compensation amount is not paid within six weeks of the passing of the order which is 19-1-2004 ,( the dead line is six weeks or say before the first week of March 2004) the interest rate shall automatically be enhanced to 12 %. It is surprising as to how TNEB took the stand that “ the Court has not specified the interest rate to be adopted above 10 %” The interest rate of 12 %adopted originally by the respondent is in order.
The next question is whether the interest rate is simple one or compounded. In the absence of any explicit direction in the orders of NCDRC, with regard to this point, I have to naturally look into the circumstances and the observations of the NCDRC before arriving at any conclusion. The very fact that NCDRC censured the Licensee and awarded compensation with interest, is itself a proof of the severity of the deficiency in service by the Licensee. Over and above, NCDRC, in no uncertain terms has condemned the actions of the Licensee in various contexts in their order. Hence the instant case has to be viewed on a different footing unlike the simple cases of deficiency in service. In such a context and in as much as the loss compensation starts from the year1996 and extends to a period of eight years since then, it would not meet the ends of justice if a mere simple interest is allowed. . The agony of the consumer for a period of eight years cannot be lost sight of or overlooked in deciding such matters. Also I am convinced upon hearing both sides that the appellant really suffered at the hands of the respondents and had to fight his case first at the Hon’ble High Court and then at the national level Commission for an ordinary issue such as attending to a fault in his service connection . In the light of the above, I am of the view that my decision should lean in favour of the consumer appellant as far as possible. Hence the payment of compound interest at the first instance is fully justifiedand the subsequent audit/ accounts objectionsdo not find favour with me.
6. Findings of the Ombudsman on the second issue
On the second issue, the question of limitation raised by the petitioner has to be examined with reference to section 56 of the Electricity Act 2003 and Regulation 21 of the Tamil Nadu Electricity Supply Code , which deals with the question of limitation insofar as the electricity related cases are concerned. A plain reading of the said section / regulation suggests that the licensee can disconnect supply after giving 15 days notice if any person neglects to pay any charge for electricity as any sum other than a charge for electricity due from him to the licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him. Hence, section 56(2) is applicable to the case on hand. It is clear from the records that two years lapsed from 15-5-2006, the date on which the petitioner disputed the excess payment made by TNEB. The amount in dispute was deducted by the respondent only under the final settlement for permanent disconnection of his service, disconnected a the request of the appellant. The respondent, having failed to reiterate and record the outstanding due from the consumer and issue disconnection notice etc., within a period of two years, can be said to have lost his legal right over the claim under the Electricity Act 2003, The respondent sat quiet until 11.3.2009 and hence, the claim is hopelessly barred by limitation also . In view of the same, the second issue is answered in favour of the petitioner.
7. Conclusion:
In view of my above findings, I am inclined to allow compound interest as originally paid by the respondents. The subsequent audit objections are set aside. No costs.Ther compliance report shall be sent within a month from the date of this order
R. Balasubramanian
Electricity Ombudsman
To
1. M/s Sree Kumar Textiles Private Ltd,
25 Sree Narayana,P&T Nagar Road,
Visalakshipuram
Madurai -625 014.
……………
2. The Chairman,
Consumer Grievance Redressal Forum
TNEB, Sivaganga Distribution Circle,
Sivagangai
3The Chairman, TNEB, 144 Anna Salai, Chennai-600 002
4. The Secretary, TNERC, Chennai-600 008.
5. AD (Computer) for hosting in the website.
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