By G. Yadunadhan, President:

            The complainant is a consumer of the opposite parties and he was having four electric connections with consumer Nos. G-82, G-109, E-29 VLY and A-1690, of which the first two connections were agricultural, the third commercial and the last domestic connection.  Disputes had started from 2001 onwards regarding unauthorized and excessive billing, which finally culminated in O.P. No.155/04 filed before this Forum.  The opposite parties had entered appearance and filed their version. The frequent failure in the supply is seen admitted therein regarding the connection to the oil/flour mill. When the opposite parties did not appear in spite of several chances given to them, this Forum had set them exparte and after considering the materials available before this Forum including the version and document submitted by the opposite parties, was pleased to allow the complaint as per order dated 9.8.2005 and directed the opposite parties to reinstate the electric connection.  There was no direction for payment of any amount whereby the contentions raised by the opposite parties were negative.   The opposite parties had reinstated the electricity connection of the complainant only on 10.10.2005 and took an endorsement to that effect.  Thereafter the opposite parties had been sending false and baseless bills for the periods when the connection was not there and the complainant had through his lawyer issued a registered notice dated 22.10.2005 bringing the same to the notice of the opposite parties.  Upon receipt of the said lawyer notice the opposite parties had again disconnected the connections without any notice whatsoever thus rendering the decision of the Forum a mockery.  The complainant was constrained to file execution proceedings as E.P.No.8/06, and the same was dismissed as there was no representation from the side of complainant. He received a notice dated 20.7.2006 issued by the Assistant Engineer, Electrical Section, Vatakara North demanding payment of Rs.20,925/- claiming it to be alleged arrears for the period from 2/04 to 2/06 of the electricity connection E-29.  It is illegal and against the earlier order of the Forum.  The charges for short period for which the connection was resumed the complainant is always ready and willing to pay, but the same can and will not be Rs.20,925/-, because the complainant is not liable to pay any amount as alleged arrears or otherwise until the date of the order in O.P. No.155/04 and thereafter he is only liable and responsible for the actual energy consumed.  Therefore praying for setting aside the bills/demand notice issued by the opposite parties and other allied relief, the above complaint is filed.

            Opposite parties have entered appearance and filed a detailed version contenting that the complaint is not maintainable, the same is bad for non-jointer of necessary parties, that the complainant is not an agriculturist, but a trader by profession, that the bills issued are proper and correct, that the complainant is a defaulter who owes a huge amount to the Board, that the order in O.P.155/04 was duly complied and that the service was again disconnected for non-payment of arrears, that the complainant could have availed the benefits of schemes like one time settlement and paid the current charge regularly if he had an ardent wish and extreme need of energy and in short, prayed for dismissal of the complaint.

            An interim order restraining the opposite parties from removing the meter and from taking Revenue Recovery proceedings was granted in I.A. No.183/06 as per order dated 17.8.2006.  An advocate Commissioner was deputed in the matter and he has filed a report dated 5.10.2006.  Evidence in the matter consists of the oral testimony of the complainant as PW1 and document marked as Exts. A1 to A10 and Ext. C1.  No evidence, oral or documentary has been adduced on the part of the opposite parties:

            Points for consideration:  1) Whether the complaint is maintainable?  (2) Whether there is any negligence, deficiency in service or unfair trade practice on the part of the opposite parties?  (3) What order as to relief and costs?

Point No.1:  Admittedly the complainant is a consumer of the opposite parties.  Allegations are made regarding negligence, deficiency in service and unfair trade practice on the part of the opposite parties. What is seen set out in the complaint is a consumer dispute as contemplated under the Consumer Protection Act.  Further no serious contentions regarding maintainability of the complaint is seen raised during arguments on the part of the opposite parties.  Hence we find that the above complaint is maintainable before this Forum.

Point No.2:  Admittedly an earlier complaint was filed as O.P. No.155/04 before this Forum by the complainant.  The same was relating to the four connections covered in the present complaint as well.  Ext. A1 is the copy of complaint.  It is seen contented that the complainant has been using the agricultural connections for operating two pump sets for irrigating his banana, vegetable and grass cultivation.  For domestic purpose there is a separate motor installed at his house.  Towards the end of the year 2001, for the last three months or so, G-109, connection was hardly being used.  But on 10.12.01 the complainant received a bill for an amount of Rs.55/- which was highly excessive, as the normal bill was only Rs.32/-.  A submission in writing was given before the concerned KSEB office but since there was no response at all, a complaint was lodged before the Executive Engineer, KSEB, Vatakara on 4.1.2002 and a copy was issued to the Chief Engineer, KSEB, Calicut.  G-82 connection was being paid for by the Agricultural Department.  Suddenly the connection was disconnected without any notice to the complainant and on 2.8.2002 a bill for an amount of Rs.87/- was issued to the complainant.  It was disconnected stating that the said connection was being used for alleged domestic purposes and that bill was issued for prior usage also.  There is a house connection and the house is kept locked as the owner and family are abroad and the minimum charges whatever applicable are being regularly paid.  The complainant submitted a complaint before the Assistant Executive Engineer, KSEB, Calicut and the Divisional Engineer, KSEB, Vatakara.  But they have not even responded to his complaint.  He had to discontinue irrigation at both his lands and consequentially lost the benefits he was availing of from the Agricultural Department on account of the act and conduct on the part of the opposite parties.  On 5.11.2003 he received two notices from KSEB stating that his two connections, viz., G-82 and G-109 were disconnected for more than 6 months as he had not paid arrears due.  He was asked to clear the dues immediately, failing which the meters would be removed and Revenue Recovery proceedings initiated against him.  The opposite parties had not replied for the letters issued by the complainant and gave a deaf ear to the grievances of the complainant.  The action of the opposite parties amounts to deficiency of service and unfair trade practice.  The Industrial connection E-29 to his oil/flour mill runs by him for earning his livelihood by means of self employment.  In this contrary to the understanding a three-phase connection was not given to him and only a single phase was given, on that a motor could not be run in the oil/flour mill.  Thus he was forced to send a complaint to the Chief Engineer at Calicut on 27.12.2001.  Thereafter a three-phase connection was given.  During that period due to some personal problems and lack of adequate business, the mill had to be temporarily closed from 14.2.2004 onwards.  The last meter reading was taken on 11.2.2004.  But the complainant was issued a bill dated 17.3.2004 for an amount of Rs.3968/-.  The same has been issued without taking any meter reading.  A complaint was submitted before the Assistant Engineer, KSEB, Vatakara on 26.3.2004.  The same has also met with the same fate as that of the previous letters sent by the complainant.  Even till the date of closure of the mill, all the three-phases of the connection never worked properly.  As he has lost the benefits due to him from the Agricultural Department, the complainant was constrained to file a complaint before this Forum as O.P. No.155/04.  The opposite parties had filed a detailed version marked as Ext. A2 raising similar contentions as in this case as well.  The frequent failure in the supply is seen admitted therein regarding the connection to the oil/flour mill.  They had even contended that a sum of Rs.1004/-, Rs.1597/- and Rs.5050/- were due from the connections G-82 VLY, G-109 VLY and E-29 VLY for the periods from March 2000 to June 2004 and February 2000 to May 2004 respectively and further stating that in the event of failure to remit the said alleged arrears, the services are liable to be dismantled and Revenue Recovery action initiated for realizing the dues.  They had specifically contended payment of the aforementioned amounts was a precondition for reinstating the connections.  The complainant had filed an application as I.A.No.76/05 for causing production of the certified copies of the extracts of the entries in the complaint book made by him since 1998, which is marked as Ext. A3.  The contentions of the complainant that the opposite parties finding that the case and claim set out by them was untenable and unsustainable and a decision was likely to be rendered against them did not willfully participate in the further proceedings before this Forum appears to be very probable from the facts and circumstances.  When the opposite parties did not appear in spite of several chances given to them, this Forum had set them exparte  and after considering the materials available before this Forum including the version and document submitted by the opposite parties had allowed the complaint as per order dated 9.8.2005 and directed the opposite parties to reinstate the electric connection.  There was no direction for payment of any amount whereby the contentions raised by the opposite parties were negative. The copy of the said order is marked as Ext. A4.  There was non compliance of the order and Ext. A5 lawyer notice is seen issued.  Electricity connection is reinstated on 10.10.2005 and thereafter a bill for the periods when the connection was not there were issued by the opposite parties, another lawyer notice , Ext. A6 is seen issued.  The electricity connections were disconnected on the ground of non-payment of the bills, another lawyer notice Ext. A7 is seen issued on 5.12.2005 and still the electricity supply was not reinstated.  E.P.8/06 marked as Ext. A8 is seen filed, but the same was dismissed for default on 10.3.2006.  Thereafter the complainant received a notice dated 20.7.2006 demanding payment of Rs.20925/- being arrears for the period from 2/04 to 2/06 of the electricity connection E-29, which is marked as Ext. A9. A reply marked as Ext. A10 is seen issued. 

Our predecessor after considering the rival contentions, passed the following order dated 9.8.2005 in O.P. No.155/04,  viz. Ext. A4 “the complaint is filed for reinstating the connection etc.  The opposite party is called absent and set exparte.  The complainant filed affidavit and marked Ext. A1 to A8.  From the affidavit and Ext. A1 to A8 the complainant’s case is proved.  In the result petition is allowed and the opposite party is ordered to reinstate the electric connection.  Pronounced in open Court this the 3^rd day of August 2005”.  The opposite parties never challenged the order of this Forum claiming payment of any arrears before giving reinstatement of the connection.  After the above order was passed the electricity connection was resumed and made available to the complainant only for a few days and thereafter the same was illegally and unauthorisedly disconnected again.  All the three connections aforementioned are remaining as disconnected and there is no electricity supply.  In view of the order in O.P. No.155/04, which remains unchallenged and fully accepted by the opposite parties, they cannot claim any amount till the reinstatement in compliance of the said order.  It is pertinent to point out that the opposite parties in the said case had a specific contention that arrears as demanded by them will have to be paid for effecting reconnection and stating that it is an essential precondition.  The said contention of the opposite parties is not seen accepted by the Forum.  Hence we hold that the opposite parties, KSEB is only entitled to demand and collect the electricity charges which accrues after the reconnection as stipulated in the said order.  Demand of alleged arrears for the prior period which has not been accepted or permitted in the earlier order and disconnection of the electricity connection on the ground of nonpayment of such improper, unauthorized and illegal bills amounts to negligence, deficiency in service and unfair trade practice.

Point No.3:  The complainant has claimed a sum of Rs.3,00,000/- as compensation for the loss and injury sustained by him on account of the negligence, deficiency in service and unfair trade practice on  the part of the opposite parties.  The Advocate Commissioner in Ext. C1 report has stated that there is no electricity connections, there is no supply of electricity to the three connection, G-82, G-109 and E-29 and that the machinery and motor in the oil/flour mill at connection E-29 the pump set and motors at the electrical connections G-82 and G-109 were rusted, damaged and unusable on account of nonuser as there is no electrical supply.  Jet pump with motor is found rusted and unusable damage to the crops is also seen reported.  The machinery also is reported to be rusted and rendered completely useless.  The Commissioner has opined that the replacement of the rusted pump sets and machinery will cost about Rs.1.7 lakhs at the present market rate.  The loss and damage on account of loss of income from the mills and machinery and also loss in agricultural income is not assessed by the Advocate Commissioner.  The Commissioner has reported that the damage caused to the machinery and pump set is due to nonuse which was resulted from the non-supply of electricity by the opposite parties.  The report is seen dated 5.10.2006.  The opposite parties have not filed any objections to the said report nor challenged the same or adduced by contra evidence.  They have not examined any witness and were not able to effectively discredit the complainant in the cross examination.  The pump sets being used for agricultural purposes has been rendered useless and defective.  The entire cultivation is lost and serious damage has been caused to the coconut and araconut trees.  Likewise because of nonuser the oil expeller, copra cutting machine, the machineries in flour mill including the milling machine have also become defective and nonfunctional whereby causing loss and injury to the complainant.  The only reason for non removal of the meter and harassment by way of coercive Revenue Recovery steps appears to be on account of the interim order dated 17.8.2006 in I.A. No.183/06.  The complainant relies on II 1992 CPJ 454 (NC) Ashok Kumar Singh Vs. M/s. Gujarat Cycles and another wherein it has been held that the reason stated by the lower Forum that the complainant has not adduced any detailed evidence furnishing particulars of the nature of inconvenience caused to him and hence not entitled to any relief is not correct or sound and that the Forums constituted under the Act has to take a realistic and pragmatic view in matters coming before them and where it is manifest that real inconvenience has been caused to complainant, it is the duty of the Forum to determine and award reasonable compensation without insisting that the complainant should perform the impossible task of furnishing particulars in regard to the nature of inconvenience suffered by him.  The Hon’ble Supreme Court of India, in Charan Singh Vs. Healing Touch Hospital and others, 2000 (III)CPR 1 (SC) has held that while quantifying damages, Consumer Forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purposes of recompensing the individual, but also at the same time aims to bring about a qualitative change in the attitude of the service provider.  In paragraph 13, it is further held that it is not merely the alleged harm or mental pain, agony or physical discomfort, loss of salary and emoluments etc. suffered by the complainant which is in issue, it is also the quality of conduct committed by the respondents upon which attention is required to be found in a case of proven negligence.  The Hon’ble Supreme Court of India in Lucknow Development Authority Vs. M.K. Gupta, 1994 (1) SC 243 has held  the jurisdiction and power of the Courts to indemnify a citizen for injury suffered due to abuse of power by public authorities is founded as observed by Lord Hailsham in Cassell & Co. Ltd. Vs. Broome, 1972 AC 1027, on the principle that an award of exemplary damages can serve a useful purpose in vindicating the strength of law.  An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities.  That is provided by the rule of law it acts as a check on arbitrary and capricious exercise of power.  In Rookes Vs. Barnard 1964 AC 1129 it was observed by Lord Devlin.  The servants of the government are also the servants of the people and the use of their power must always be subordinate to heir duty of service.  A public functionary if be acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but to abuse.  No law provides protection against it.  He who is responsible for it must suffer it.  Compensation or damage as explained earlier may arise even when the officer discharges his duty honestly and bona fide.  But when it arises due to arbitrary or capricious behavior then it loses its individual character and assumes social significance.  Harassment of a common man by public authorities is socially abhorring and legally impermissible.  It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance.  Nothing is more damaging than the feeling of helplessness.  An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it.  Therefore the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil.  It may result in improving the work culture and help in changing the outlook and so observing further held under our constitution sovereignty vests in the people.  Every limb of the constitutional machinery is obliged to be people oriented.  No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself.  Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the Statute like the Commission or the Courts entrusted with responsibility of maintaining the rule of law.  Each hierarchy in the Act is empowered to entertain a complaint by the consumer for value of the goods or services and compensation.  The word compensation is again of very wide connotation.  It has not been defined in the Act.  According to dictionary it means, compensating or being compensated, thing given as recompense.  In legal sense it may constitute actual loss or expected injury or loss.  Therefore when the Commission has been vested with the jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the commission to redress any injustice done to him.  Any other construction would defeat the very purpose of the Act.   The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him.  Thus keeping in view of the above principles laid down by the Hon’ble Supreme Court of India and Hon’ble National Commission and upon consideration of all the relevant matters in issue and especially conduct of the opposite parties we grand the following relief:-

(1)    Ext. A9 demand notice is hereby set aside and the opposite parties are directed to reconnect the electricity connection to the complainant and issue fresh bills for the energy consumed after such reconnection as well as for the energy actually consumed for the short period from 10.10.2005 till the earlier disconnection.  It is made clear that the opposite parties are not entitled to demand or recover any amount towards arrears of electricity charges till the reconnection on 10.10.2005.

(2)    The opposite parties are directed to pay an amount of Rs.50,000/- as compensation  to the complainant for the loss, injury and damage sustained by him on account of the negligence, deficiency in service and unfair trade practice on the part of the opposite parties.

(3)    The opposite parties are also directed to pay a sum of Rs.3,000/- as costs to the complainant.

The amounts aforementioned shall be paid within a period of one month from the date of receipt of the order, failing which the same shall carry interest at the rate of 12% per annum.

            Finally we reiterate the principles laid down by the Hon’ble Supreme Court of India in Lucknow Development Authority case regarding recovery of the amount awarded from the erring officers.  It was held by the Supreme Court that when the Court directs payment of damages or compensation against the State the ultimate sufferer is the common man.  It is the tax payers’ money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law.  It was further held that it is therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.  Hence it is further directed that the K S E B shall take emergent steps to recover the amount awarded as damages from those employees who are found liable and responsible for the above acts instead of passing on the burden to the common tax payer.

            Pronounced in open Court this the 1^st  day of October 2009.

                        Sd/-President                           Sd/-Member

APPENDIX

Documents exhibited for the Complainant:

A1        Photocopy of the complaint filed before the CDRF, Kozhikode, dated 5/04.

A2        Photocopy of version filed by the opposite parties in O.P. No.155/04.

A3        Photocopy of I.A. No.76/05 in O.P. No.155/04.

A4        Photocopy of order in O.P. No.155/04 pronounced on a3.8.2005.

A5        Photocopy of lawyer notice dated 5.10.2005 issued for the complainant to the O.P.

A6        Photocopy of lawyer notice dated 24.10.2005.

A7        Photocopy of lawyer notice dated 5.12.2005.

A8        Photocopy of E.P. Notice issued in E.P. No.8/06 of CDRF, Kozhikode.

A9        Photocopy of Notice dated 20.7.06 of O.P. directing to pay Rs.20925/- as arrears.

A10      Photocopy of reply to Ext. A9 notice.

C1        Report of Advocate Commissioner dated 5.10.2006.

Documents exhibited for the opposite parties:

Nil.

Witness examined for the complainant:

PW1     Kunhabdulla, S/o. Moideen Musaliyar, Vadekkekuyilil, P.O.Purameriparambil.

Witness examined for the opposite parties:

None

-/True copy/-

President

(Forwarded/by Order)

Senior Superintendent.