Date of filing : 16-04-2012
Date of order : 28-01-2013
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.108/2012
Dated this, the 28th day of January 2013
RESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT. K.G.BEENA : MEMBER
Moideen Kunhi Haji, : Complainant
S/o.Kunhi Ahammed,
R/at.K.M.K. House, Hosabettu Village,
Manjeshwar, Kasaragod Taluk & Dist.
(Adv.Sadananda Kamath.K & Aysha Thasneem
Kasaragod)
Assistant Engineer, : Opposite party
Electrical Section, Hosabettu Village,
Manjeshwar, Kasaragod Taluk & Dist.
(Adv.P.Raghavan, Kasaragod)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
Brief facts of the case are that the complainant is running an Ice factory near Thalapady ,Manjeshwar. On 16-03-2012 one official of KSEB visited the premises of the complainant’s Ice factory and inspected the Ice plant without any notice and alleged that one of the phase (Y phase) of electricity connection out of the three phase is not working. Subsequently the complainant was served with a provisional short assessment demand notice for Rs.1,34,088/-. Though he preferred and appeal U/s 127 of the Electricity Act before the Deputy Chief Engineer on 2-4-2012. He directed the complainant to pay 50% of the bill impugned before admitting the appeal. But the complainant did not pay the amount and not pursued the appeal. Now he approached this Forum complaining deficiency in service on the part of opposite party and praying for a direction to exonerate him paying the bill and to pay compensation and costs of the proceedings.
2. According to opposite party, Secretary, KSEB is the authorized person to represent the KSEB before the Forum. In this case Secretary is not made party. Hence complaint is bad for non-joinder of necessary party.
3. On merits the contention of the opposite party is that on 16-03-2012 the Anti Power Theft Squad inspected the premises of the complainant and checked the metering equipments of Consumer No.10576 in the presence of the writer of the Ice-plant, and prepared a Mahazar. On examination they found that out of the three phases i.e. R,Y,B one of the phase ‘Y’ is not working since the potential coil of the said phase was in loose contact. Due to this the power consumption from 12/11 to 3/12 showed a sharp decrease which showed that the meter recorded less consumption than the actual consumption. Hence short assessment bill was issued to the complainant for the period 11/11 to 16-03-2012. As per Sec.37 (5) of the Electricity Supply code 2005 if it is established that it has under charged the consumer either by review or otherwise the Board may recover the amount under charged from the consumer by issuing bills. Accordingly board issued the bill impugned to the complainant. There is no deficiency in service on the part of the opposite party and the complaint is therefore liable to be dismissed.
4. Both sides heard. Exts A1 to A7 marked on the side of complainant. Exts B1 & B2 marked by opposite party.
The points arise for consideration are.
1. Whether the complaint is bad for non-joinder of necessary party?
2. Whether the complaint is maintainable before the Forum?
3. Whether the complainant is entitled for the relief claimed?
4. What is the order as to costs & compensation?
5. Issue No.1.
The contention of opposite party is that complaint is not maintainable since Secretary, K.S.E.B, is the authorized person to represent the Kerala State Electricity Board before the Forum and in this case he is not made a party. The said contention is not sustainable. Consumer Protection Act 1986 as amended up to date nowhere provides that in a case alleging deficiency in service against K.S.E.B, the Secretary shall be a necessary party. Order XXIX of Code of Civil Procedure is not applicable to the proceedings of the Consumer Forum which stipulates that in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the Secretary or by any director or other Principal Officer of the Corporation who is able to depose to the facts of the case. Therefore we hold that the complaint is not bad for non-jointer of necessary party.
6. Points Nos 2 & 3are discussed together for the sake of brevity
The learned counsel for the complainant submitted that he preferred an appeal U/s127 of Electricity Act 2003 against the short assessment bill before the Deputy Chief Engineer, KSEB, Electrical Circle, Kasaragod. But before admitting the appeal the complainant was directed to remit 50% of the assessed amount as a condition precedent, since the complainant is not liable to pay the said amount he has neither paid the amount nor pursued the matter. The opposite party also did not produce any document to show the such an appeal has been disposed on merits. In this circumstance we are of the view that the directions laid down by the Hon’ble National Consumer Disputes Redressal Commission in the case of Jharkhand State Electricity Board & Another V Anwar Ali reported in 2008 CTJ 837 (CP) is not applicable to the instant case and therefore the complaint is maintainable before the Forum.
7. Now coming to the core point the opposite party in their version has contended that the short assessment bill is issued in terms of Sec 37 (5) of Electricity Supply code 2005. As per that board may recover undercharged amount from the consumer. But on going through Kerala Electricity Supply Code 2005 we could not find out such a regulation. On the other hand in KSEB Terms & Conditions of Supply 2005 Condition 37(5) stipulates what is referred by the opposite party. The said condition envisages that if the Board establishes that it has undercharged the consumer either by review or otherwise the Board may recover the amount undercharged from the consumer by issuing a bill.
8. But we are unable to appreciate the stand of opposite party in issuing the short assessment bill to the complainant relying on this condition. This is quite ambiguous and no ample cogent evidence is submitted before us to show that there was short assessment during the period 11/11 to 3/12.
9. The opposite party had no case that complainant has either tampered the electricity meter or misused the electrical energy. The electricity meter is a property of the opposite party. It is the duty of the opposite party to check and maintain the meter in proper order. A consumer is not liable to be saddled for the lapse on the part of opposite party to check the meter periodically and to maintain it in the proper order.
10. Ext.A7 is the final assessment order dt.29-03-2012 issued by opposite party to complainant in his Ice Plant having the Consumer No.10576. Contrary to what is stated in the version, in Ext.A7 it is noted that short assessment bill is issued under regulation 33(2) of the KSE Board Terms & Conditions of Supply 2005 and it is further stated that the complainant has to pay the bill U/s 126 (b) (u) of the Electricity Act 2003 and Electricity Act 2007. The total amount assessed is Rs.1,34,088/-.
11. In order to have a clear perspective we have carefully gone through the relevant regulation of KSEB Terms & Conditions of Supply 2005 it says “If the board is unable to raise a bill due to its non recording or malfunctioning the board shall issue a bill based on the previous 6 months average consumption. In such cases the meter shall be replaced within one month if the average consumption for the previous 6 months cannot be taken due to meter ceasing to record consumption or any other reason the consumption will be determined based on the meter reading in the succeeding 3 months after replacement of meter”.
12. On a bare reading of this regulation itself it is manifest that the opposite party misquoted this provision. The opposite party has no case that the meter installed in the premises of the Ice Plant of the complainant is faulty. The error in connection of a ‘phase’ out of three phases is not a fault in the meter. Hence calculation of the charges on account of Regulation 33(2) of KSEB Terms & Conditions of Electric Supply 2005 is not justifiable.
13. Another provision noted in Ext.A7 for issuing the bill is noted as Section 126(6)(b)(4) of Electricity Act 2003. Electricity (Amendment) Act 2007. But the said provision of law also not applicable to the instant case on hand. 126 (6) of the Electricity Act 2003 deals with assessment for unauthorized use of electricity. But the instant case no way come within the purview of ‘Unauthorised use of electricity’. Hence the opposite party is not entitled to claim any amount adhering to Sec 126 (6) (b) (v) of Electricity Act 2003 as amended in 2007.
14. Now returning to the merits it is the case of opposite party that as per Ext.B2 meter reading extract pertaining to the complainant, Ice Plant, there is variation in the meter reading from 11/11 to 3/12 and there is sharp decrease in readings. Ext.B2 is the meter reading register extract for the period from 31-03-2010 t 30-04-2012. But on perusal of the meter reading it is seen that on 30-06-2010, 01-07-2010, 31-08-2010 etc also meter shows less consumption. Again on 30-06-2011, 31-07-2011 also consumption is low. Hence merely relying on Ext.B2 no one can decipher that there is error in the connection. The production of ice blocks may vary according to season like availability of the fish weather condition. Etc.
15. However, it is a fact that on the date of inspection by the APT squad one of the phase of the electric connection was not proper and some energy has escaped unrecorded. But the lapse on the part of the opposite party to check the meter and maintain it properly caused a financial burden on the consumer. We are of the view that the consumer shall not suffered on account of the negligence or deficiency in service on the part of opposite party in maintaining the meter properly.
However, the complainant is liable to suffer a portion of the energy which is escaped unrecorded.
16 . We are of the view that the amount claimed by opposite party is unconscionable. Therefore we direct the opposite party to revise the bill to 50% of the amount claimed. In other words the complainant is liable to pay Rs.134088-:2 = Rs.67,044/- only towards the bill impugned. Out of the said amount complainant has already remitted Rs.44,696/- as a condition for granting interim stay when the complainant is instituted. Hence he is liable to pay the balance of Rs.22,348/- towards the bill impugned.
The complaint is therefore allowed that extent. Opposite party is directed to revise the short assessment final assessment order No.DB/2011-12/MTR/299/23312 for Rs.1,340,88/- to it’s half i.e. Rs.67,044/-. On receipt of the revised bill complainant shall the pay the balance less the amount Rs.44,696/- he already remitted towards the said bill while seeking interim stay against the disconnection of the electricity connection. Time for payment is limited to one month from the date of receipt of copy of the order. Failing which the amount of Rs.22348/- will carry interest and surcharge applicable to the arrears of electrical charges from the date of order till payment.
MEMBER MEMBER PRESIDENT
Exts.
A1. Bill iussued by OP.
A2. 16-03-2012 Site Mahazar.
A3 to A6 Bills issued by OP.
A7.29-03-2012 Final assessment order.
B1.Site Mahazar
B2. Meter reading details of Consumer No.10576.
MEMBER MEMBER PRESIDENT
Pj/
