BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 02/03/2012

Date of Order : 30/04/2014

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 118/2012

Between

And

O R D E R

A. Rajesh, President.

1. Shortly stated, the case of the complainant is as follows :-

The complainant is running a small scale lamp shade manufacturing unit. The unit is functioning since 1988. The complainant was provided with a non-domestic water connection by the opposite parties. The water supplied by the opposite parties was used in toilets and for cleaning the office. The complainant is employing only 9 employees in the unit. The supply of water to the complainant's unit was erratic and the complainant was charged with minimum water charges applicable. As the water supplied by the opposite parties was not dependable, the complainant stopped using water since 1998 and was depending on alternate sources. Since, the water supplied by the opposite parties was not used by the complainant, non-issuance of the water bills by the opposite parties was unnoticed. From 2010 onwards, the defect in the water supply was rectified by the opposite parties and water supply was resumed. On 07-01-2011, the Assistant Executive Engineer, Anti theft Squad inspected the premises of the complainant and disconnected the water supply and issued a notice to the complainant showing that a sum of Rs. 48,000/- was due towards water charges arrears. After a week thereafter, the opposite parties issued another bill for Rs. 1,21,078/- towards arrears. The complainant preferred appeal as per Regulation 17 (d) of the Water Supply Regulations. Since no further action was taken, the complainant approached the Hon'ble High Court of Kerala by filing WPC No. 10387/2011. The writ petition was disposed off on 05-04-2011 directing the appellate authority to take appropriate action in the appeal filed by the complainant and also directed the opposite parties to restore the water connection upon payment of 50% of the demand. The complainant preferred appeal against the above order. As per order in W.A. No. 830/2010, the Appellate authority was directed to hear the appeal on remittance of Rs. 40,000/-. The appellate authority without considering the averments of the complainant passed an order on 24-12-2011 holding that the complainant is using one Kiloliter water per day and accordingly an arrear bill was issued for a sum of Rs. 40,952/- as dues upto October 2011 and penalty. In the order of the appellate authority, it is stated that in the earlier claim arrear charges upto November 2010 and the minimum rate is Rs. 48,535/-. That apart, additional water charges @ 2/KL was Rs. 62,543/-. The complainant remitted Rs. 40,000/- as directed by the Hon'ble High Court. The demand of the opposite parties is without any basis and the complainant is not liable to pay the amount. Thus, the complainant is before us seeking direction against the opposite parties to set aside the charges imposed on the complainant taking into consideration of 6 months average consumption as the basis for computation and to pay the complainant a sum of Rs. 10,000/- towards compensation and costs of the proceedings. This complaint hence.

2. The version of the opposite parties is as follows :-

The complainant used the water supplied by the opposite parties for commercial purpose and the complainant is not a consumer within the purview of the Consumer Protection Act and this Forum has no jurisdiction to entertain the complaint. The connection was given to the Manager, Air Cool System Pvt. Ltd., Maradu on 08-11-1995 with connection No. MRD 3086/N. The said consumer paid the water charges upto August 1999. The opposite parties issued water charge bill every 2 months. The complainant did not remit the water charge bill stating that the complainant is not Air Cool System Pvt. Ltd. The meter readers could not find out the connection in the premises of the complainant, since they were not allowed to enter the compound of the complainant. Regular water supply is there in the area in which the company is located. On 07-11-2011, the Assistant Executive Engineer Anti Water Theft Squad made a surprise visit to the premises of the complainant and found out the consumer is using water with faulty meter. As per the quantity of water supplied the water charges was fixed at 2 KL per day and the arrears to be remitted was worked out as Rs. 1,21,078/-. The consumer paid Rs 40,000/- as per the judgment in WA No. 830/2011 of the Hon'ble High Court of Kerala. As per the direction in the judgment, the 2^nd opposite party conducted a hearing and the water charge was revised from May 1999 with 1 KL per day and the bill amount was revised as Rs. 78,432/- upto November 2010. The faulty meter was replaced on 16-08-2011 and the bill arrived at as per the meter reading and the total bill comes to Rs. 43,119/- upto February 2012. There is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.

3. The complainant was examined as PW1 and the witness for the complainant was examined as PW2. Exts. A1 to A22 were marked on the side of the complainant. Neither oral nor documentary evidence was adduced by the opposite parties. Ext X1 also was marked. Heard the counsel for the parties.

4. The points that arose for consideration are as follows :-

1. Whether the complainant is a consumer within the ambit of the Consumer Protection Act?

2. Whether the complainant is liable to pay the water charges arrear bills?

3. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- At the threshold, the opposite parties contended that the complainant is not a consumer within the ambit of the Consumer Protection Act, since the complainant availed the water connection for commercial purpose. Ext. A6 is the certificate issued to the complainant from the Department of Industries and Commerce, which goes to show that the complainant is a private limited company registered as a small scale industrial unit. The private limited company is also a consumer within the purview of the Consumer Protection Act in view of the decision rendered by the Hon'ble Apex Court in Karnataka Power Transmission Corporation and Another Vs. Ashok Ben Works Pvt. Ltd. 2009 CTJ 23 (SC) (CP) = AIR 2009 SC 1905. So, the contention of the opposite parties that the complainant is not a consumer cannot be upheld.

6. Indisputably, the complainant is the beneficiary of the water connection even if it was granted in favour of Air Cool Systems Pvt. Ltd. The beneficiary of services is also a consumer as per Section 2 (i)(d)(ii) of the Consumer Protection Act.

7. Point No. ii. :- The facts being so on 07-01-2011, the Assistant Executive Engineer, Anti Water Theft Squad, Ernakulam conducted a surprise visit at the premises of the complainant and issued Ext. A8 notice to the complainant stating that the water meter was not working, adequate protection has not been given to the meter and an amount of Rs. 48,000/- is due to the opposite parties towards water charges arrears. In addition to Ext. A8, the complainant was served with Ext. A9 notice demanding to pay Rs. 1,21,078/- by way of water charge and also directed to replace the faulty meter and to remit disconnection and reconnection charges for the reconnection of water connection.

8. According to the complainant, they had not been getting water, through the water connection from 1998 to 2010. The complainant maintains that since the complainant was purchasing water from private vendors could not use water for reason of non-supply of water by the opposite party and so they did not pay the water charges. It is stated that the opposite parties issued the disputed bill without any basis and is liable to be set aside. The learned counsel for the complainant relied on the following decisions rendered by the higher Judiciary :-

1. M/s. Pioneer Motors Pvt. Ltd. Vs. N. Chandran, Winspot Tailors & Anr. 2010 I CPR 175.

2. State of Kerala Vs. Y.R. Kalyanikutty 1999 KHC 297

3. Assistant Engineer, Department of Phed and Anr. Vs. Banwarilal & Ors. II (2003) CPJ 14 (NC).

4. A. Shamsuddin Vs. Assistant Executive engineer, Kerala Water Authority I (1995) CPJ 117.

9. Per contra, the opposite parties vehemently and vigorously contended that the water connection was granted in favour of the Manager, Air Cool Systems Pvt. Ltd. with effect from 08-11-2005 and the consumer had paid the water charges upto April 1999 only and subsequent to that they did not remit the water charges, though they have been using water. The opposite parties contended that thereafter, the complainant did not accept the water bills stating that the complainant is not Air Cool Systems Pvt. Ltd. Further, they contended that they could not find out the connection in the premises, since they are not allowed to enter the compound of the complainant.

10. The complainant submitted Ext. A10 letter dated 21-01-2011 to revise the amount as per Ext. A9 to which the 1^st opposite party sent Ext. A11 reply reiterating the demand as per Ext. A9. Accordingly, the complainant approached the Hon'ble High Court of Kerala and the Hon'ble High Court pronounced Ext. A12 judgment dated 22-06-2011, which reads as under :-

“Considering the above contentions raised, we direct the appellate authority to hear the matter on the appellant depositing Rs. 40,000/- as a condition for maintainability of the appeal for which the appellant is granted three weeks time from now. If payment is made as above, the appellate authority will take up the appeal and decide the matter, if necessary after conducting an inspection of the premises and after estimating the probable consumption on a reasonable basis. Orders in the appeal should be issued after hearing the appellant within a period of three months from now. On payment of Rs. 40,000/- as above, water connection will be restored to the appellant after installing meter, if there is no meter functioning in the premises. Balance arrears will remain stayed till disposal of the appeal and thereafter recovery will be made based on orders in appeal. Regular bills will be paid by the appellant without default.”

Both the parties duly complied with the order of the Hon'ble High Court of Kerala .

11. In furtherance the 2^nd opposite party passed Ext. A13 order dated 24-12-2011, which is as under :-

“From all these above it was noted that the petitioner is consuming water with faulty water meter and without remitting water charge. Consider all the above facts it was decided the quantity of additional water fixed by Assistant Executive Engineer as 2KL/day is to be revised as 1KL/day. The assistant Executive Engineer is also directed to revise the bill based on the above decision and issue revise bill within 10 days of receipt of this order.”

In consonance with Ext. A13 the 1^st opposite party issued Ext. A15, the consumer bill dated 10-05-2012 under challenge to the tune of Rs. 44,867/- after deducting Rs. 40,000/- which the complainant had remitted as per the direction of the Hon'ble High Court of Kerala.

12. At the request of the complainant vide order in I.A. No. 139/2012 dated 03-03-2012, this Forum directed the opposite parties to refrain from further proceedings with the order of the 2^nd opposite party dated 24-12-2011 till disposal of the complaint.

13. At the instance of the complainant, vide order in I.A. No. 117/2013 dated 02-03-2013, the opposite parties produced the copy of the consumer ledger of the consumer which was marked as Ext. X1. In Ext. X1, the meter readers or consumption of water by the complainant is not available from 12-06-1998 to 16-08-2011. The opposite parties contended that the meter reader could not find out the connection in the premises of the complainant, since they were not allowed to enter the compound of the complainant. We are at a loss to entertain such a contention, especially when the opposite parties are empowered under Regulation 21 of the Kerala Water Authority (Water Supply) Regulations 1991 to disconnect the water connection for the reasons therein. No plausible reason is forthcoming conspicuously on the part of the opposite parties in not invoking the above provision for more than a decade. They even failed to issue a notice to the consumer demanding to pay the water charges till the surprise inspection on 07-10-2011.

14. It is pertinent to note that there was laches on the part of the complainant as well. The complainant at least ought to have issued a letter to the opposite parties stating that they have not been using water of the opposite parties from the water connection or they have not been getting water through the connection. Moreover, they have not taken any steps to get the connection temporarily disconnected. Since admittedly, the complainant has been holding the water connection, since 1988 legally they are liable to pay the water charges to the opposite parties.

15. Both the parties are equally accountable for their own lapses and laches and to set things right, we are only to hold that the complainant is to pay the minimum water charges under non-domestic category from the last remittance of water charges till the date of replacement by the water meter without any fine as per Regulation 14. In Ext. A13 order, the 1^st opposite party unilaterally calculated the consumption of water of the complainant as 1KL/day without any supporting evidence or documents. The above fixation is unsustainable in law, especially when admittedly the water meter was not working and the consumption of water is not available. The meter reading as per the replaced water meter cannot be taken retrospectively to calculate the previous consumption of the complainant in this case because as per Ext. A7 the complainant had been purchasing water from a private agency. The cases cited by the learned counsel for the complainant are not applicable to the case on hand.

16. Point No. iii. :- The complainant has claimed a compensation of Rs. 10,000/-, since the complainant had to suffer mental agony. The complainant is registered as a company a legal person. A legal person is not entitled to get compensation for mental agony. Since a natural person alone can suffer the same. The same is fortified by the decision of the Hon'ble Supreme Court in Sikka Paper Ltd. Vs. National Insurance Company Ltd. & Others 2009 CTJ (Supreme Court) (CP) 706. Therefore, the complainant is not entitled to get any compensation with reverence to the higher wisdom of the Law of the land. The primary grievance of the complainant having been met squarely, compensation and costs of the proceedings are necessarily not called for.

17. In the result, we partly allow the complaint and direct as follows :-

1. We set aside the impugned water charge arrear bill issued by the opposite parties to the complainant.

2. The opposite parties shall issue a fresh water charge arrear bill to the complainant from 26-05-1999 the date of last remittance of charges by the complainant till 16-08-2011 the date of replacement of the defective water meter under non-domestic category considering the consumption of water by the complainant as bare minimum without levying any penal charges.

3. The opposite parties shall adjust the amount remitted by the complainant ie. Rs. 40,000/- as per the direction of the Hon'ble High Court of Kerala in the bill to be issued to the complainant.

4. The order I.A. No. 139/2012 would be in force till the date fixed for compliance of the order as per Clause (ii).

5. The complainant shall peremptorily pay the water charges as per the readings in the newly installed water meter from 16-08-2011.

6. It is made clear that the opposite parties are at liberty to take appropriate legal action against the complainant, if the complainant fails to comply with the above directions.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 30^th day of April 2014.

Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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