BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.No. 355/2003 Filed on 4/9/2003
Dated: 30..11..2009
Complainant: R. Gopakumar, Sasthakripa, Kallayam, Thiruvananthapuram. (By Adv. V. Satheesh Kumar)
Opposite parties:
1. Assistant Executive Engineer, Electrical Major Section, Nalanchira, Thiruvananthapuram.
Kerala State Electricity Board, Vaidyuthi Bhavan, Pattom, Thiruvananthapuram., represented by its Secretary.
(By Adv. B. Sakthidharan Nair)
This O.P having been heard on 30..09..2009, the Forum on 30..11..2009 delivered the following:
ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that complainant's father was the consumer of the opposite parties vide consumer No.6124 and the connection is under domestic category, that complainant was promptly paying the bills regularly, that on 9/5/1998 the complainant was served with a bill for Rs.11,880/- stating that the amount is charged for unauthorised temporary extension, that the complainant never took any unauthorised temporary extension or connection in the said consumer number, that complainant preferred a suit against opposite parties vide O.S No.14/99 before the 1st Additional Munsiff Court, Thiruvananthapuram, that the Munsiff Court without properly appreciating the entire evidence tendered before it, dismissed the said suit, and that thereafter the complainant applied for judgment to prefer an appeal against the impugned judgment. While so on 1/9/2003 complainant was served with a bill for Rs.27,799/- including penal charges for unauthorised extension, that the said bill does not disclose any facts or figures to substantiate the claimed amount as per the notice. The opposite parties threatened the complainant that they will disconnect the electric supply to the complainant, that the bill issued by the opposite parties is highly arbitrary and against the principles of natural justice. Hence this complaint to cancel the bill dated 1/9/2003 for Rs.27,799/- issued by opposite parties and to realise a compensation of Rs.1,000/- and cost of the entire proceedings from the opposite parties.
2. Opposite parties filed version contending that the complaint is not maintainable either in law or on facts, that complaint is barred by the principles of resjudicata, that the issue in the present complaint was directly and substantially in issue in O.S 14/99 on the file of the 1st Additional Munsiff Court, Thiruvananthapuram, that the said suit was dismissed, that the complainant cannot again agitate the same matter before this Forum, that the complaint is not maintainable since it is in respect of mis-use of electrical energy and complainant has not availed the appeal remedy provided under Rule 48 of the Conditions of Supply of Electrical Energy, that the complainant had mis-used the electrical energy given for domestic purpose, that he had made an unauthorised extension by using the energy for working a mosaic cutting machine of 2kw, which was detected by the Special Squad on 13/2/1998, which led to issue a penal bill for Rs. 11,880/- dated 9/5/1998 to the complainant, that the said bill was not paid by the complainant inspite of the dismissal of O.S 14/99. There was no legal bar in the said amount with interest. Hence opposite paties empowered to disconnect the electric supply of the said consumer Number. Opposite parties acted only as per law. Hence opposite parties prayed for dismissal of the complaint with cost.
3. The points that arise for consideration are :
Whether the complaint is barred by the principles of resjudicata? Whether the complainant is entitled to get the bill dated 1/9/2003 for Rs.27,999/- cancelled? Whether there is deficiency in service on the part of opposite parties? Whether the complainant is entitled to get compensation, If so, at what amount?
In support of the claim, complainant has filed proof affidavit, and Exts. P1 & P2 series were marked. In rebuttal, 1st opposite party has filed affidavit and Exts.D1 to D5 were marked.
4. Points (i) to (iv) : Admittedly, complainant is a consumer of the opposite parties vide consumer No.6124 and connection is under domestic category. It has been the case of the complainant that on 9/5/1998 he received a bill from the opposite parties for an amount of Rs.11,880/- towards the charge for unauthorised temporary extension, that he never took unauthorised temporary extension from the said connection, that the same was challenged before the Munsiff Court, Thiruvananthapuram by way of OS No. 14 of 1997, but the Court dismissed the said suit. It has also been the case of the complainant that the said Munsiff Court stayed the operation of the judgment as per the Order in IA No. 4043 of 2001; while so, on 1/9/2003, he was served with bill for Rs.27,799 which is the subject matter in this complaint. Ext. P1 is the invoice dated 1/9/2003 for Rs. 27,799/-. As per Ext. P1 bill, two items are seen referred to (1) Rs. 11,880/- vide Judgment dated 27/1/2001 in OS No.14/99 of Munsiff Court, Thiruvananthapuram, (2)Rs.15,919/- vide Bill dated 20/3/1998 of this Office – penal charges for unauthorised extension for 3 months with a connected load of 2KW (from 3/98 to 9/2003). Exts. P2 series include three receipts for Rs.205/-, Rs.123/- and Rs.114/- issued by opposite parties to consumer No.6124. Ext. D1 is the copy of the mahassar dated 13/2/1998 prepared by the Sub Engineer, no witness is seen signed in the Ext.D1. Ext.D2 is the statement of account for Rs.36,590/-. Ext.D3 is the copy of the plaint in OS 14/1999 before the Munsiff's Court, Thiruvananthapuram. Ext.D4 is the written statement filed in OS 14/1999. Ext. D5 is the copy of the judgment in OS 14/99. On perusal of Ext.D5 it is seen that the complainant herein had moved a Civil Suit before the Munsiff's Court, Thiruvananthapuram as OS 14/99 for declaration and mandatory injunction. As per Ext.D5 the allegation raised by the complainant herein is that complainant's predecessors in interest received a bill dated 9/3/1998 for Rs.11,880/- from the defendants, stating that the said amount was a penalty for taking unauthorised temporary connection. Opposite parties herein had appeared therein and filed written statement and after raising the issues, the OS 14/99 was dismissed by the Court, against which complainant never preferred appeal. In this case complainant sought to set aside the Ext. P1 bill dated 1/9/2003 for Rs.27,779/-. It is pertinent to note that as per Ext.P1 invoice, the said amount is brought under two categories – Rs.11,880/- is seen stated in connection with Ext.D5 judgment dated 27/1/2001 in OS 14/99 of Munsiff Court, Thiruvananthapuram and Rs.15,919/- is in connection with penal charges for unauthorised extension. As regards the 1st part of the Ext. P1 invoice for Rs.11,880/-, complainant had already challenged it before the Munsiff Court and decision had come on it by Ext. D5, and for that very same cause of action, complainant has no right to approach this Forum, to the extent of which, partly this complaint is hit by the principles of resjudicata. As regards allegation in connection with the 2nd part of Ext. P1 invoice for Rs.15,919/-, the same was neither the subject matter of the former suit nor was it seen adjudicated upon it by any court of law. Hence we find the issue in regard to the second part of the Ext.P1 invoice for Rs.15,919/- is not hit by the principles of resjudicate. We have gone through Ext.D1, which is the primary document, upon which the alleged Ext.P1 invoice is seen raised by opposite parties. It is uttered by the complainant that he never took any unauthorised temporary extension or connection in the said consumer number. It is seen in Ext.D1 that the said site mahassar has been prepared by one Sub Engineer of the 1st opposite party's Office. 1st opposite party has been examined as DW1 and cross examined by the complainant. In his cross examination DW1 admitted that Ext.D1 was not produced along with affidavit. DW1 also admitted about the correction seen in Ext.D1. “ സാക്ഷികള് ആരും ഒപ്പിട്ടിട്ടില്ല എന്ന് പറഞ്ഞിടത്ത് വെട്ടിയിട്ടുണ്ട് ? (Q) അതെ (A). Ext.D1 - ന്െറ ആധികാരികതയെപ്പറ്റി എനിക്ക് നേരിട്ട് അറിവില്ല.. ഞാന് വരുന്നതിന് മുന്പുള്ളതാണ്. നിങ്ങള്ക്ക് DD2- നെ സംബന്ധിച്ചുംനേരിട്ട് അറിയില്ല.. (Q) ഞാന് നേരിട്ട് രേഖ തയ്യാറാക്കിയില്ല.. നേരത്തെ തയ്യാറാക്കിയിരുന്നതാണ്. . (A) D2 -ന്െറ original കൈവശമുണ്ട്. D2 തയ്യാറാക്കിയത് 13/2/98 - ല് ആണ്. It is pertinent to note that DW1 has no direct knowledge about Ext.D1 mahassar report, the person who had prepared the mahassar has not been examined by the opposite parties. On a perusal of Ext.D1, it is seen that towards the bottom of Ext.D1 some correction is seen made. Initially in the mahassar, (Ext.D1) it is seen written that “സാക്ഷികള് ആരുംതന്നെ ഇല്ലാത്തതിനാല് ഒപ്പിട്ടിട്ടില്ല . Subsequently the second portion of the said sentence is seen struck off and re-written as “സാക്ഷികള് ആരും തന്നെ ഒപ്പിടാന് തയ്യാറായിട്ടില്ല ”. DDW1 has deposed that he has no direct knowledge about the Ext. D2. The allegation raised by the opposite party is in regard to unauthorised extension or connection. Complainant has filed affidavit stating that he had never taken any unauthorised extension or connection from the said consumer number. Complainant has never been cross examined by the opposite parties while DW1 has been cross examined by the complainant. The initial onus of proving the unauthorised extension or connection would rest on the party who raises such an allegation. Opposite parties have not succeeded in establishing the same with cogent and clinching evidence. Hence, the claiming of penal charge of Rs.15,919/- in connection with unauthorised extension as seen in Ext.P1 invoice is unilateral and against facts, whereas the amount of Rs.11,880/- in Ext.P1 invoice is seen claimed in connection with judgment dated 27/1/2001 in OS 14/99 of the Munsiff Court against which complainant never preferrred appeal, thereby Ext.D5 judgment in OS 14/99 has attained finality. In view of the matter and in the light of evidence available on records, we are of the considered opinion that complainant is legally bound to pay Rs.11,880/- to opposite parties in the light of Ext.D5 whereas Rs.15,919/- as claimed in Ext.P1 invoice has no basis as the veracity of the Ext.D1 mahassar remains challenged and not yet proved the same by the opposite parties with cogent and convincing evidence, to extent of which, we find deficiency in service on the part of opposite parties.
In the result, complaint is partly allowed. Complainant shall pay the opposite parties a sum of Rs. 11,880/- in connection with the judgment dated 27/01/2001 in OS 14/99 of Munsiff's Court, Thiruvananthapuram vide Ext. P1 invoice dated 01/09/2003. There will be no compensation in facts and circumstances of the case. Both parties shall bear and suffer their costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30th day of November, 2009.
G. SIVAPRASAD, PRESIDENT. BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER
ad.
OO.P.No. 355/2003 APPENDIX
I. Complainant's witness : NIL II. Complainant's documents: P1 : Photocopy of bill No.88492 dated 1/9/2003 issued by opposite parties.
P2 : " receipt No. 92 P2(a) : " receipt No. 18
P2(b) : " receipt No. 93
III. Opposite parties' witness:
DW1 : Muhammed Sadique
IV. Opposite parties' documents:
D1 : Photocopy of site mahazar D2 : " invoice D3 : " suit for declaration and mandatory injunction submitted by opposite parties.Co DD4 : " judgment from the Hon'ble Munsiff Court, Trivandrum.
PRESIDENT.
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | |
