BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 21st of January 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.171/2010
(Admitted on 11.06.2010)
Sri.P.Krishnamoorthy,
So. A. Sundara Karanth,
Aged about 46 years,
RA. Urlandy, Bypass Road,
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. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant is the consumer of electricity power supply as per R.R. No.6176 for his residential purposes. The average bill of the Complainant is between Rs.2,000/- to Rs.2,500/-. The Complainant has been paying the electricity bill as and when issued by the Opposite Party. There is no due whatsoever payable by the Complainant.
It is stated that, the Opposite Party L.T Rating personnel has issued report dated 17.03.2009 and took signature of the Complainant, thereafter, the Complainant has received a letter dated 05.03.2010 from the Opposite Party stating that, the internal auditors have pointed out the short claim made to the above meter and called upon the Complainant to pay Rs.15,905/- as audit short claim for the period from 07.02.2008 to 30.11.2009. It is stated that, the calculation of the Opposite Party has no basis and the Complainant not used more power than the bill paid. Feeling aggrieved by the above, the Complainant issued a legal notice dated 17.03.2010 but the Opposite Party not complied the demand made therein. It is stated that, in order to avoid the disconnection, the Complainant has paid the bill amount of Rs.15,905/- under protest to the Opposite Party.
The Opposite Party did not follow the procedure as contemplated under law, which is the duty of the Opposite Party to replace the meter within 3 days of the inspection and also failed to follow the procedure with regard to the supplemental claim of the Complainant. It is stated that, the letter dated 05.03.2010 issued by the Opposite Party is arbitrary, illegal and has no basis and contended that, the service rendered by the Opposite Party amounts to deficiency in service and hence the above complaint filed 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 letter/bill dated 05.03.2010 for Rs.15,905/- is null and void, to refund the amount of Rs.15,905/- to the Complainant along with interest at 12% p.a. from 07.04.2010 till payment and also claimed Rs.35,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version and admitted that, the Complainant is a consumer of electricity power supplied by them. It is stated that, the Complainant’s meter was out of order in the month of July 2008. Thereafter, the direct connection was given and average charge was collected. On 17.03.2009, the Opposite Party inspected and replaced the new meter to the Complainant’s residence. It is also stated that, while issuing a bill, the Opposite Party mistakenly considered the three months bill i.e., May, June and July 2008 instead of April, May and June 2008. It is stated that, as per the Section 27.04 of the Electricity Distributions Code 2000-01, they have issued a supplemental bill calling upon the Complainant to pay the difference amount i.e., Rs.15,905/- which is correct and contended that 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.P.Krishnamoorthy (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C6 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 R4 were marked for the Opposite Party as listed in the annexure. Both parties produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this 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):
The facts which are not in dispute is that, the Complainant is the consumer of electricity power provided by the Opposite Party as per R.R. No.6176 for his residential purposes. It is also not in dispute is that, the average bill of the Complainant was between Rs.2,000/- to Rs.2,500/- and he has been paying the electricity bill as and when issued by the Opposite Party.
Now the grievances of the Complainant is that, the Opposite Party LT Rating Personnel has issued a report dated 17.03.2009 and took signature of the Complainant, thereafter the Complainant has received a letter dated 05.03.2010 from the Opposite Party stating that, the internal auditors have pointed out the short claim made to the above meter and called upon to pay Rs.15,905/- as audit short claim. It is submitted that, the Complainant has been paying an average bill of Rs.2,500/- to the Opposite Party and produced copies of the bills and receipts and stated that, the Opposite Party without following the procedure as contemplated under the Electricity Act, issued a supplemental bill which is arbitrary, illegal and not correct, hence this complaint.
The Opposite Party on the other hand contended that, the Complainant’s meter was out of order and thereafter new meter was fixed. During that period, only the average charge was collected but while issuing a bill, the Opposite Party mistakenly considered the bill amount of May, June and July 2008 instead of April, May and June 2008. It is stated that, after the auditing the difference amount has been claimed by issuing a supplemental bill dated 5.3.2010 which is correct and there is no deficiency.
However, on perusal of the oral as well as documentary evidence, we find that, the Complainant is a consumer of electricity power provided by the Opposite Party Corporation as per R.R. No.6176 for his residential purposes and there is no fault on the part of the Complainant. The Complainant specifically stated that, the Opposite Party not followed the procedure while issuing a supplemental claim and not given any opportunity to file objection and the supplemental bill issued by them is arbitrary, illegal and not correct and produced Karnataka Electricity Supply and Distribution Code 2000-01.
However, our attention was drawn towards the Section 27.04 and 29.04 of the Karnataka Electricity Supply and Distribution Code 2000-01. The above Sections reproduced herebelow:
“Section 27.04 - METER NOT RECORDING:
(i) If the meter is found not recording (for any reasons other than tampering) the Consumer will be billed for a period of not more than six billing months preceding the date of inspection/testing and upto the date of replacement or rectification of the meter on the basis of the average energy consumption of the immediately preceding 3 (three) billing months when the meter was recording properly plus demand / fixed charges.”
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 said provisions made very clear that, if the meter is found not recording for any reasons other than the tampering, the consumer will be billed for a period not more than six billing months preceding the date of inception. And further the consumer will be billed for on the basis of the average energy consumption of the immediately preceding three billing months. And further, in case of claiming supplemental claim, the jurisdictional Sub-Divisional Engineer shall serve a provisional bill with 15 days notice to the consumer to file his objections. After considering the objections of the consumer, the Sub-Divisional Engineer shall issue the final bill. But in the instant case, the Opposite Party not issued any provisional bill with 15 days notice to the Complainant to file his objection, but on the other hand, the Opposite Party straight away issued a 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 the Karnataka Electricity Supply and Distribution Code 2000-01. It is significant to note that, to claim supplemental claims there should be a basis, one cannot make a claim by imagination. In the given case, there is no fault or there is no due whatsoever on the part of the Complainant during the alleged disputed period. Just because the meter was not working, the Opposite Party cannot adopt the procedure by overlooking the Karnataka Electricity Supply and Distribution Code 2000-01. But in the instant case, we observed that, the Opposite Party in his reply categorically admitted that, they have not called for objections to Ex C1 i.e., the letter dated 05.03.2010 calling upon the Complainant to pay bill for Rs.15,905/-. It is further admitted by the Opposite Party in their reply that, the Opposite Party has conducted periodical inspection of the meter on 17.03.2009 and the above said out of order meter has been replaced by the Opposite Party on 09.12.2009. But while considering the short claim, they considered preceding three billing months before July 2008. But there is no record to show that, the meter has gone out of order in the month of July 2008. As per Ex C2 i.e., original inspection report reveals that, the Opposite Party has conducted inspection on the meter on 17.03.2009. But there is no material produced before this FORA to show that, when exactly the direct connection was provided to the above said meter. Further, it does not disclose the energy consumed by the Complainant. In the absence of any cogent/material evidence, it is very difficult to accept that the above said meter was out of order in the month of July 2008 and direct connection was given to the above said RR Number on the above said year. On the other hand, we could accept that, the Opposite Party in their evidence categorically admitted that, they have conducted inspection on 17.3.2009 and the new meter was installed on 9.12.2009. That means, preceding three billing months should have been considered before 17.03.2009 not July 2008. Hence, the supplemental bill issued by the Opposite Party holds no basis. It is also very important to note that, the Complainant was using the electricity power connection from 22.02.1992. There was no dispute/short claim with regard to the bill issued by the Opposite Party. But we have noticed that, all of a sudden the Opposite Party without giving opportunity to the Complainant to file objection and without filing or drawing any accurate report to that effect or without any prior notice or without issuing a provisional bill, the Opposite Party issued a demand letter dated 05.03.2010 cannot be accepted in this case.
In a case of this nature, it is the bounden duty of the Opposite Party to prove before this Forum, that the supplemental bill raised by the Opposite Party against the Complainant is correct and there is no deficiency. The Ex C1 is the audit short claim letter issued by the Opposite Party dated 05.3.2010, which states the difference of bill amount but 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 as stated supra. 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 Parties cannot be allowed to go back upon its words and refuse the consumer the benefit of notice/objection as contemplated by the agreement. The above provisions stated supra 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 the amount under the Electricity supply. The stand taken by the Opposite Party itself shows that, they have not maintained proper record/report to show that when exactly the meter was out of order and when they had given direct electricity connection. Without there being any proof or without there being any mistake on the part of the Complainant, it is not possible to assume that the stand taken by the Opposite Party is correct without a full pledged documents on this issue. In as much as, the notice is a pre-requisite for 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 on record that, the Complainant with the apprehension of disconnection of power supply paid the bill amount of Rs.15,905/- on 05.03.2010. Just because the Complainant paid the above said amount, the Opposite Party cannot take advantage of the helpless situation of the consumers/Complainant.
In view of the above discussion, we hold that the Opposite Party cannot straight away issue the supplemental bill without giving opportunity to the Complainant to file an objection. It is proved that, there is no fault or due whatsoever on the part of the Complainant during the alleged disputed period. The Opposite Party is not just in issuing the supplemental bill and 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.
In view of the foregoing reasons, we hold that, the supplemental bill raised by the Opposite Party for Rs.15,905/- is null and void and the same shall be refunded to the Complainant along with interest at 10% p.a. from the date of payment of the bill amount till the date of realization OR in the alternative, the above said amount shall be adjusted towards the future electricity bills. Rs.1,000/- awarded as cost of the litigation expenses. Compliance/ 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.15,905/- (Rupees fifteen thousand nine hundred and five only) is null and void and the same shall be refunded to the Complainant along with interest at 10% p.a. from the date of payment of the bill amount till the date of realization OR in the alternative, the above said amount shall be adjusted towards the future electricity bills. Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses. Compliance/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 21st day of January 2011.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.P.Krishnamoorthy – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 05.03.2010: Original letter and bill for Rs.15,905/-.
Ex C2 – 17.03.2009: Original inspection report.
Ex C3 – 17.03.2010: Lawyer’s notice sent to the Opposite Party on behalf of the Complainant.
Ex C4 – 31.03.2010: Reply of the Opposite Party to the lawyer’s notice dated 17.03.2010 along with ledger extract from April 2006 to February 2010.
Ex C5 & C6 – 15.02.2008 to 13.12.2009:Copies of the bills and receipts (21 bills and receipts).
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 R1 – 17.03.2010: Lawyer’s notice received from the Complainant.
Ex R2 – 31.03.2010: Reply of the Opposite Party to the above legal notice along with ledger extract.
Ex R3 – 17.03.2009: Copy of the Inspection report.
Ex R4 – 05.03.2010: Notice issued by the Opposite Party to the Complainant.
Dated:21.01.2011 PRESIDENT
