KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACADU, THIRUVANANTHPAURAM APPEAL NO.739/2000 JUDGMENT DATED 4.1.2008 Appeal filed against the order passed by the CDRF, Kollam in OP.No.540/99 PRESENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER 1. Asst.Executive Engineer, Electrical Major Section, : APPELLANTS Chavara. 2. Deputy Chief Engineer, Apts, KSEB, Vaidhudhi Bhavan, Pattom, Thiruvananthpauram. 3. Secretary, K.S.E.B., Pattom, Thiruvananthapuram (By Adv.S.Balachandran) Vs. Ajith Kumar, : RESPONDENT Con.No.14923, Managing Partner, Supreme, Neendakara.P.O., Kollam. (ByAdv.G.S.Kalkura) JUDGMENT SRI.S.CHANDRAMOHAN NAIR : MEMBER The opposite parties are the appellants in this appeal preferred against the order dated 28.4.2000 in OP.No.540/99 of the CDRF, Kollam.
2. The case of the complainant before the Lower Forum was that he was the consumer of the opposite parties and that there was an inspection of his premises by the 2nd opposite party in March 1999 and after inspection he was told that there was no error to the motor installed in the factory. It is his case that on 8.5.99 he received a letter from the 1st opposite party directing him to replace the capacitor installed in his motor failing which he was liable to pay 20% extra charges with effect from 3/1999 till the date of replacement. He had replaced the capacitor on 8.5.99 itself and the matter was informed to the opposite parties on 10.5.99 after remitting Rs.2 towards fee. The complainant further alleges that he received a bill on 1.7.99 for Rs.16096/- towards 20% extra charges levied from 3/99 to 10.5.99 and as he was not liable to pay the amount, the complaint was filed for a direction to the opposite parties not to realize the amount of Rs.16096/- covered by the bill and to pay Rs.3000/- as compensation and Rs.2000/- as costs. 3. The opposite parties in their version contended that there was an inspection of the premises of the complainant on 8.3.99 by APTS(Anti Power Theft Squad) and it was found that the capacitor of one 40 HP Motor was not working and the other 40 HP Motor was under maintenance. The site mahasar was prepared by them which was refused to be signed by the employee of the complainant who was present at the time of inspection. The fact of the defect of capacitor was informed to the said employee of the complainant and he was directed to replace the same within two weeks which the complainant did not do and as such the notice dated 8.5.99 was sent to the complainant directing him to replace the defective capacitor. They also contended that as per the tariff Notification published in the extra ordinary Gazette dated 29.1.97 all consumers were required to install static capacitors approved by ISI for power factor improvement for the inclusive loads. In the event of static capacitor becoming faulty or unserviceable, the consumer should forthwith intimate the matter to the Asst.Executive Engineer or Assistant Engineer of the concerned section and the consumers are to make immediate arrangement for repair. It was also submitted by the opposite parties that of the defective capacitor was not duly repaired or replaced within 2 weeks the enhanced charges shall be payable by the complainant for the whole period the capacitor was faulty. In the instant case the capacitor was faulty from 8.3.99 to 10.5.99 ie from the date of inspection of the special squad to the date on which the intimation was given by the complainant that the capacitor was replaced and hence the bill was perfectly in order and they prayed for the dismissal of the complaint. 4. The evidence consisted of the deposition of the complainant as PW1 and the employee as PW2. Documents P1 to P4 were marked on the side of the complainant. The Deputy Chief Engineer of the Electricity Board who was present at the time of the inspection was examined as PW1 and the Sub Engineer who prepared the mahasar was examined as PW2. The Asst.Engineer was who witnessed the mahasar was examined as DW3. Documents D1 to D4 were marked and based on the above impugned order was passed by the Forum below. 5. We heard the counsel for the appellants and the respondent. 6. The counsel for the appellants vehementally argued before us that the Forum had passed the order without any appreciation of the facts and circumstances of the case. The Forum has failed in considering the evidence adduced by the opposite parties. It is argued by the learned counsel that the complainant himself had admitted that there was an inspection in Marh 1999 conducted by the 2nd opposite party Deputy Chief Engineer, APTS. It is also admitted by the complainant that he had replaced the capacitor and informed the matter to the opposite party/Asst.Exe.Engineer, Electrical Major Section., Chavara on 10.5.99 only. The copy of page 22 of the extra ordinary gazette Notification on 29.1.97 was placed before us wherein it is stated thus: (5) “ In the event of the static capacitor becoming faulty or unserviceable the consumer should forthwi9th intimate the matter to the Assistant engineer/Assistant Executive Engineer of the concerned Electrical Section/Major Section and the consumer shall make immediate arrangements for repair”. (6) “ If the capacitor is not put back into service duly repaired and to the satisfaction of the Board within two weeks, enhanced charges as per Note I above shall be payable for the whole period during which the capacitor was faulty”. 7. The learned counsel invited our attention to the fact that the complainant’s employee though wrongly noted as operator was present at the time of inspection and from the admission of the complainant himself that there was an inspection on March 1999, it is proved got to prove that there was an inspection on 8.3.99 conducted by the APTS and a mahasar was prepared. It is also not correct to say that the mahasar was not proved as the attestive witness and the person who prepared the mahasar and the Deputy Chief Engineer who was present at the time of inspection were examined before the Forum and in such a circumstances, the Forum ought not have passed the impugned order favouring the complainant. 8. On the other hand the learned counsel for the respondents supported the order and prayed for the dismissal of the appeal. He has argued that Ext.P3 letter dated on 8.5.99 would go to show that it was only on 8.5.99 that the complainant was informed of the defect of the capacitor and he had cured the defect by replacing of the capacitor on the same day itself and matter was informed to the opposite party on 10.5.99 ie within 2 weeks and as such there was no occasion for the opposite parties to issue the bill for Rs,16096/- which he was not liable to pay, though to avoid disconnection he had paid one installment. He has invited our attention to the decision of the Hon’ble High Court in E.P.Ahammed Koya vs The KSEB and others (2003(2) KLJ, 297) where in it was observed by the Hon’ble High court that it should be the duty of the Board to point out the violation or lapse of the consumer and give reasonable time to the consumer to rectify the defects rather than forcing the consumer to approach the court as last resort. It was the case wherein the KSEB had charged 20% extra charges for the defective capacitor during which period it was not replaced/repaired. 9. It is admitted by both parties that there was an inspection in March 1999 at the premises of the consumer by the APTS, though the complainant would say that he was informed that there was no defects. In paragraph 1 of the complaint he has stated “After the inspection the 2nd opposite party orally reported to the complainant that there was no error to the motor being installed in the factory”. 10. From the above statement it is clear that the complaint was aware of the inspection on 8.3.99; the only question that remains whether he was informed of the defect of the capacitor then and there or on 8.5.99 only. The complainant asserts that he was informed of the defect only on 8.5.99 and as such the bill issued was unjustifiable and untenanble. However we are not inclined to accept the contention of the complainant that he came to know about the defect of the capacitor on 8.5.99 only consequent to the issue of the letter dated 8.5.99 by the Assistant Executive Engineer, Electrical Major Section, Chavara. We also see that site mahasar was prepared on 8.3.99 in the presence of the Deputy Chief Engineer, APTS and the Asst.Executive Engineer. The mahasar was prepared by Sub engineer and witnessed by one Jose also. It is stated that the employee who is described as operator had refused to sign the mahasar. But the person who prepared mahasar the person who witnessed the mahasar were examined before Forum and nothing would be brought out to discredit their statements before the forum. We find no reason to disbelieve the depositions of the appellants/opposite parties and the Sub Engineer who prepared the mahasar. On a careful examination of the evidence of the witnesses it is clear that there was an inspection on 8.3.99 and the capacitor was defective and that fact was informed to the employee of the complainant namely Raveendran. The complainant cannot take advantage of the letter dated 8.5.99 wherein he was informed of the defect of the capacitor only on that date and he has replaced the same on the same date itself. In the case cited b y the counsel for the respondent the party was totally unaware of the defect and the bill was without any prior intimation regarding the defect of the capacitor. But in the case on hand there was an inspection on 8.3.99 which the complainant himself had admitted in the complaint and as such the complainant is liable to pay the extra charges the opposite party which was covered by the bill dated 1.7.99. It cannot also be said that the complainant was totally unaware of the inspection and the defect of the meter prior to the receipt of the letter dated 8.5.99 In the result the appeal is allowed and the order dated 28.4.2000 in OP.540/99 of CDRF, Kollam is set aside. In the facts and circumstances of the case the parties shall bear their respective costs in the present appeal. SRI.S.CHANDRAMOHAN NAIR : MEMBER SMT.VALSALA SARANGADHARAN : MEMBER ps | 
