BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 15th July 2010
COMPLAINT NO.37/2010
(Admitted on 23.01.2010)
PRESENT: 1. Smt. Asha Shetty, President
- Smt.Lavanya M. Rai, Member
BETWEEN:
M. Nagappa Gowda,
So. Chennappa Gowda,
Aged about 54 years,
Ra. Kaverikatte, Darbe,
Kemminje Village, Puttur Taluk,
Dakshina Kannada. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Sanjay D).
VERSUS
Assistant Executive Engineer,
MESCOM, Puttur Sub-Division,
Puttur, Dakshina Kannada. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri.S.M. Bhat).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The Complainant submits that, he has purchased the immovable property of Balnadu Village of Puttur Taluk comprised in survey No.86/1 extent 0.64 cents including a tiled house along with other immovable properties from one Batyappa Poojary S/o. Late Venkappa Poojary as per sale deed dated 01.11.2007. The tiled house had power connection as per meter No.RR 2906 in the name of late Venkappa Poojary. At the time of purchase of the above property, the above meter number had an outstanding due of Rs.4,206/- and it was paid by the Complainant as per receipts No.2534794 and 3191568 dated 03.09.2007 and 08.10.2007 respectively. The above meter was transferred in the name of the Complainant on 05.01.2010. After the purchase of the above property the Complainant could not stay in the tiled house. In the month of March 2009 the Complainant started to reside in the Balnadu property. The average bill of the meter is between Rs.20/- to Rs.100/- per month. It is stated that, the Complainant has received bill dated 19.11.2009 for Rs.22,904/- from the Opposite Party as audit short claim.
It is alleged that, the bill does not show for what period the audit short claim and no prior notice was issued. Aggrieved by the above, the Complainant issued a lawyer’s notice dated 16.12.2009 to the Opposite Party and the Opposite Party issued a false reply.
It is stated that, the Opposite Party disconnected the power supply on 31.12.2009 without any disconnection notice. Hence the Complainant forced to pay the bill amount of Rs.22,764/- and Rs.20/- towards the disconnection and reconnection charges. It is contended that, without following the procedures annunciated under the Distribution Code, the Opposite Party issued a bill and disconnected the power supply amounts to deficiency in service and hence the above complaint is filed by the Complainant before this Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to declare that the bill dated 19.11.2009 is null and void and to refund Rs.22,764/- with 10% interest from 01.01.2010 till payment and also claimed Rs.40,000/- as compensation and cost of the litigation expenses.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version admitted that the Complainant is a consumer of the power supply provided with R.R. No.2906. It is stated that, the Complainant is the consumer of the Opposite Party from 13.01.2010 and before that one Batyappa Poojary was the consumer. The Complainant did not transfer the electricity meter in the name of the Complainant soon after purchase of the above said property. It is further stated that, it is the duty of the Complainant to inform the Opposite Party the purchase of the building and get it transferred in his name.
It is further stated that, the electricity meter was not working and it was damaged hence they could not obtain the exact reading of the meter and they have charged on average basis. Thereafter during the auditing time they found the exact reading of the meter and issued a bill dated 19.11.2009 for Rs.22,764/-. According to the Opposite Party, the above said bill is correct and there is no deficiency and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.M.Nagappa Gowda (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C20 were marked for the Complainant as listed in the annexure. One Sri.Lohith B.S. (RW1), Assistant Executive Engineer of the Opposite Party filed counter affidavit and answered the interrogatories served on him. Ex R1 to R7 were marked for the Opposite Party as listed in the annexure. Both parties produced notes of arguments along with distribution code.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
In the given case, the facts which are not in dispute is that, the Complainant purchased the immovable property of Balnadu Village of Puttur Taluk comprised in survey No.86/1 extent 0.64 cents including a tiled house along with other immovable properties from one Batyappa Poojary S/o. Late Venkappa Poojary as per sale deed dated 01.11.2007(i.e., Ex C1). In the above said property, the tiled house had power connection as per meter No.RR 2906 in the name of Late Venkappa Poojary. It is admitted by the parties that, the above said meter number had an outstanding due of Rs.4,206/- and it was paid by the Complainant as per receipts No.2534794 and 3191568 dated 03.09.2007 and 08.10.2007 respectively and further it is admitted that, the meter was transferred in the name of the Complainant on 5.1.2010.
Now the point in dispute before this Forum is that, according to the Complainant, he could not stay in the tiled house purchased by him because the said house was in damaged conditions in the month of March 2009 and started to reside in the above said property. It is stated that, the average bill of the above meter is between Rs.20/- to Rs.100/- per month. The Complainant received a bill dated 19.11.2009 for Rs.22,904/- (as per Ex C5) from the Opposite Party as audit short claim. It is contended that, the alleged bill issued by the Opposite Party is not correct and it does not show on what basis the audit short claim is claimed and denied that the Complainant not made use of the electricity units shown in the bill hence the Complainant issued lawyer’s notice dated 16.12.2007 i.e., as per Ex C19 to the Opposite Party. The Opposite Party on 31.12.2009 without issuing any disconnection notice, disconnected the power and the Complainant was forced to pay the bill amount of Rs.22,664/- under protest hence this Complaint.
The Opposite Party interalia contended that, the short fall claim made by them is correct and there is no deficiency.
On careful scrutiny of the evidence/materials on record, we find that, the Complainant purchased the immovable property of Balnadu Village of Puttur Taluk comprised in survey No.86/1 measuring 0.64 cents including a tiled house along with other immovable properties from one Batyappa Poojary, S/o. late Venkappa Poojary as per sale deed dated 01.11.2007 as stated supra. In the said immovable property comprised one tiled house had power connection as per meter No.2906. The Ex C5 is the bill issued by the Opposite Party in respect of RR No.2906, wherein, it reveals that, the previous unit shows as 2078 and present consumption units shows 2141. The defence of the Opposite Party is that, the meter was not recording since September 2006 to April 2009 i.e., for two years and eight months.
As per the Code No.27.04, the back billing cannot be made for more than six months. And further there is no evidence in proof to show that when the Opposite Party has come to know that the meter is not working whether they have installed the meter, if they have installed the meter the present consumption ought to have produced. And further we find that, if the meter is burnt or not working the same has to be sent to meter testing laboratory as per the Code but no such material evidence placed on record before this forum to corroborate that the meter was not recording.
Further, as we discussed herein above, the Complainant admittedly purchased the above tiled house with RR No.2906 and paid the arrears of Rs.4,206/- as per Ex C2 and C3 i.e., the receipt for payment of the amount. And on 19.11.2009 the Complainant issued a bill for Rs.22,904/- which is not admitted by the Complainant and issued a Lawyer’s notice dated 16.12.2009 i.e., as per Ex C19 and the Ex C20 is the reply given by the Opposite Parties but there is no explanation on what basis the Opposite Party calculated the short fall claim.
In a case of this nature, it is the bounden duty of the Opposite Party to prove before the Forum that a supplemental bill raised by the Opposite Party against the Complainant is correct and there is no deficiency. The Opposite Party collected the amount of Rs.22,744/- from the Complainant in this case on 01.01.2010. According to the Opposite Party, the short claim was between 8/2006 to 4/2009 but the Ex R1 i.e., letter issued by the Opposite Party dated 27.08.2009 calling upon the Complainant to pay the amount of Rs.22,743/- towards the audit short claim for the period between 8/2006 to 4/2009, the said letter do not reveal any direction to the Complainant to file an objection. When the Opposite Party claims supplemental claim, there should be a basis for the same. On the other hand, it has to be appreciated that the licensee undertaking is performing a public duty and is governed by the special statute. The law under the special statute also contemplates certain procedure under the Electricity Distribution Code. In making each claim, the service of notice is a pre-requisite for disconnection or supplemental claim. The Opposite Party cannot be allowed to go back upon its words and refuse the consumer the benefit of notice/objection as contemplated by the agreement.
Some relevant provisions reproduced herebelow for the sake of convenience, the Section 56 of the Electricity Act 2003, Section 28.00 (ii), 28.00 (iv) and 29.04 of the Karnataka Electricity Supply and Distribution Code 2000-01 reads thus:-
“Section 56 of the Electricity Act, 2003:-
Disconnection of supply in default of payment – (1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days’ notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer:
- Provided that the supply of electricity shall not be cut off if such person deposits, under protest. –
- an amount equal to the sum claimed from him, or
- the electricity charges dues from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months,
Whichever is less, pending disposal of any dispute between him and the licensee.”
Section 28.00: Replacement of Burnt out meters:-
(ii) If the meter of required capacity is not readily available, the installation shall be connected on direct connection basis and immediate action taken to fix a good meter to the installation within 3 days.
(iv) The released burnt meter shall be sent to the Meter testing laboratory of the Licensee. If the meter is burnt out due to mistake of consumer or fault in the consumer premises, there shall be no refund of the cost of meter collected by the Licensee and if it is due to the technical reasons like voltage fluctuation etc., attributable to the system constraints, the cost of meter collected by the licensee shall be adjusted against the future energy charges of the Consumer under intimation to the consumer.
SECTION 29.04 OF THE CODE i.e.
SUPPLEMENTAL CLAIMS:
“For preferring the supplemental claims, the jurisdictional Sub divisional Engineer of the Licensee shall serve a provisional bill with 15 days’ notice to the Consumer to file his objections, if any, against the provisional back billing charges on account of prejudicial use of power or on account of faulty meter or short claims caused due to erroneous billing and obtain his reply. After considering the objections of the Consumer the Sub divisional Engineer shall issue the final bill. The Consumer shall be intimated to make the payment within 30 days of the date of intimation failing which the power supply to the installation shall be disconnected and such amount shall be deemed to be arrears of electricity charges.
The above provisions are made us very clear that, the Opposite Party is governed by a special statute. That is the law under the special statute contemplates certain procedure to be adopted. We do not understand as to what is the difficulty in the way of the Opposite Party to serve a notice on the consumer before claiming or disconnecting the electricity supply. The stand taken by the Opposite Party is that the Complainant was not informed the purchase of the house or the meter was not recording accurate reading between 8/2006 to 4/2009 and thereby they have charged average bill etc. etc., then what prevented the Opposite Party to issue a notice to the Complainant to file his objections if any against the provisional back billing charges on account of short claims caused due to fault of the meter. Without there being any proof or without a full pledged documents on this issue, it is not possible to assume the accusation/allegation/stand taken by the Opposite Party is correct. There is no proof to show that, as per the Code if the meter is fault the good meter has to be replaced within 3 days and further if the meter is burnt or not working should be sent to meter testing laboratory as per code 28.00 as stated supra. There is nothing has been placed on record by the Opposite Party in order to substantiate the same. In as much as, the notice is a pre-requisite for disconnection/claiming supplemental claim as we stated herein above. But in the given case, the Opposite Party without following any procedure contemplated under Electricity Act 2003 drawn a supplemental bill and issued to the Complainant. It could be seen that, the Complainant with the apprehension of disconnection of the power supply paid the bill amount of Rs.22,764/- on 01.01.2010 appears to be reasonable. The Opposite Party cannot straight away issue the supplemental bill without giving opportunity to the Complainant to file an objection. Before claiming supplemental bill, the Opposite Party ought to have complied the procedure contemplated under Karnataka Electricity Supply and Distribution Code 2000-01. It is on record that, the average consumption of the power supply is between Rs.20/- to Rs.100/-. When that being the case, it is very hard to believe that the Complainant has consumed so much of power without there being any material evidence. Further, it is proved that there is no fault or due whatsoever on the part of the Complainant during the alleged disputed period. From the evidence on record, it is proved beyond doubt that the Opposite Party is not just in issuing the supplemental bill. Further we have observed that, the Opposite Party not followed the procedure contemplated under the Code. Under that circumstances, the supplemental claim made by the Opposite Party cannot be considered as genuine claim. When the bill is not genuine the option left open to us is that to declare the supplemental bill issued by the Opposite Party is null and void and hereby quashed. The service rendered by the Opposite Parties in this case amounts to deficiency.
However, it could be seen that the Complainant paid the bill amount on 01.01.2010 i.e., as per Ex C7 and C8 in this case as admitted by the Opposite Party. In view of the foregoing reasons, we hold that the supplemental bill raised by the Opposite Party for Rs.22,764/- is null and void and hereby quashed and the same shall be refunded to the Complainant along with interest at 10% per annum from 01.01.2010 till the date of payment or in the alternative the above said amount may be adjusted towards future electricity bill. Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The supplemental bill raised by the Opposite Party for Rs.22,764/- (Rupees twenty two thousand seven hundred and sixty four only) is null and void and hereby quashed and the same shall be refunded to the Complainant along with interest at 10% per annum from 01.01.2010 till the date of payment or in the alternative the above said amount may be adjusted towards future electricity bill. Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 12 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 15th day of July 2010.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.M.Nagappa Gowda – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 01.10.2007: Copy of the sale deed.
Ex C2 – 13.08.2002: Copy of the ration card.
Ex C3 & C4 – 03.08.2007 & 08.10.2007: Original receipts for payment of Rs.2,387/- & Rs.1,819/-.
Ex C5 – 19.11.2009: Original bill for Rs.22,904/-.
Ex C6 – 31.12.2009: Letter of the Complainant to the Opposite Party.
Ex C7 & C8 – 01.01.2010: Original receipts for payment of Rs.22,764/-.
Ex C9 to C18 – 20.07.2007, 20.10.2007, 20.11.2007, 20.09.2007, 20.08.2007, 20.12.2007, 20.05.2008, 20.11.2008. 20.08.2008, 20.02.2008 – Original bills (10 in numbers).
Ex C19 – 16.12.2009: Lawyer’s notice sent to the Opposite Party.
Ex C20 – 31.12.2009: Reply of the Opposite Party.
Witnesses examined on behalf of the Opposite Party:
RW1 – Sri.Lohith B.S., Assistant Executive Engineer of the Opposite Party.
Documents produced on behalf of the Opposite Party:
Ex C1 – 27.08.2009: Letter of the Opposite Party to the Complainant.
Ex C2 – 31.12.2009: Reply of the Opposite Party to the Complainant’s advocate.
Ex C3 – 02.12.2009: Letter of the Complainant to the Opposite Party.
Ex C4 – 02.12.2009: Indemnity Bond.
Ex C5 – 06.08.2007: Death certificate of Venkappa Poojary.
Ex C6 – 02.12.2009: Power Supply agreement.
Ex C7 - : Conditions of supply of Electricity and Distribution Licensees in the state of Karnataka.
Dated:15.07.2010 PRESIDENT
