Kerala

StateCommission

A/09/532

K.Ibrahimkutty - Complainant(s)

Versus

Asst. Engineer, KSEB - Opp.Party(s)

Shyam Padman

12 Nov 2010

ORDER

 
First Appeal No. A/09/532
(Arisen out of Order Dated 31/03/2009 in Case No. CC 09/08 of District Wayanad)
 
1. K.Ibrahimkutty
Kangumpurath House, Ambalavya.P.O, Bathery Taluk
Wayanad
Kerala
...........Appellant(s)
Versus
1. Asst. Engineer, KSEB
Anti Theft squad,Kalpetta
Wayanad
Kerala
...........Respondent(s)
 
BEFORE: 
  SRI.S.CHANDRAMOHAN NAIR PRESIDING MEMBER
 
PRESENT:
 
ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAD, THIRUVANANTHAPURAM

APPEAL 532/2009

JUDGMENT DATED: 12.11.2010

PRESENT

SMT.VALSALA SARANGADHARAN       : MEMBER

SRI.S.CHANDRAMOHAN NAIR               : MEMBER

 

K.Ibrahimkutty, S/o Alavi,                            : APPELLANT

Kangumpurath House,

Ambalavayal.P.O., Bathery Taluk,

Wayanad District.

 

(By Adv.Shyam Padman)

                Vs.

1. Assistant Engineer,                                   : RESPONDENTS

    Anti Power Theft Squad, KSEEB.,

    Kalpetta, Wayanad.

 

2.  Assistant Engineer,

     Kerala State Electricity Board,

     Electrical Sub Divisions,

     Sulthan Bathey,

     Eayanad.

 

3.  The Secretary,

      Kerala State Electricity Board,

      Vydhyuthi Bhavan,

      Thiruvananthapuram,

      Kalpetta, Wayanad.

JUDGMENT

 

SRI.S.CHANDRAMOHAN NAIR     : MEMBER

          The order dated 31.3.2009 in CC 9/08 of CDRF, Wayanad is being assailed in this appeal by the complainant who is aggrieved by the dismissal of the complaint by the Forum below.

          2. For a fair disposal of the appeal the brief facts of the case are recapitulated as here under: That the complainant is a consumer of the opposite parties having electric connection to his residence vide consumer No.3134 and also having another connection to his 1st, 2nd and 3rd floors of the same building with consumer No.7509  and that he was regularly paying electricity charges.  It is his case that on 25.10.03 when the complainant and his family members were not in the house there was a surprise inspection by the 1st opposite party in the building and two demand cum disconnection notices were issued to him for a sum of Rs.68540/- and Rs.7200/- respectively on the allegation that the complainant was misusing energy from consumer No.3134.  It is also the case of the complainant that though he had given a written complaint to the Deputy Chief Engineer, Anti Power Theft Squad stating that he had not committed any misuse of energy, not only that  the complaint was dismissed but he was also directed to pay the amount failing which the supply was to be disconnected.  Submitting that the demand cum disconnection notices were illegal and unsustainable, the complaint   was filed praying for directions to the opposite parties to cancel the bills and to pay compensation of Rs.25,000/-.

          3. Resisting the complaint, the opposite parties filed version wherein it was stated that on 25.10.03 there was a surprise inspection by the APTS of


the opposite parties and that unauthorised additional load, misuse of energy and temporary extension from consumer No.3134 were found out and it was consequent to the said inspection that the bills were issued which were liable to be paid by the complainant.  It was also submitted that by the time the complaint was filed the amount had gone up to Rs.1,57,500/- including interest.

          4. The evidence consisted of the oral testimony of the complainant as PW1 and Exts.A1 to A5 on the side of the complainant.  The Assistant Engineer and Assistant Executive Engineer of the opposite parties were examined as OPW1 and OPW2 and Exts.B1 to B10 were marked on the side of the opposite parties.    The Forum below had appointed an Advocate Commissioner and an expert for verifying the electrical installation of the complainant and the reports were marked as Ext.C1 and C2. On a verification of the case bundle it is found that the complaint is filed as  back in 2003 and the same is numbered as 240/03.   On a perusal of the order sheet it is found that on 7.12.07 the complaint was dismissed and on filing an IA 37/08 the complaint was restored to file and renumbered as CC.No.9/08.

 

         


          5. Heard both sides.  The learned counsel for the appellant/ complainant vehemently argued before us that the Forum below had not considered the real facts and circumstance of the case in its correct perspective.  It is his very case that the Forum below had passed the order without appreciation of the evidence tendered by the complainant and also that the Forum below had ignored the Commission reports marked as C1 and C2.  He advanced the contention that the reports of the expert and advocate commissioner would clearly establish the fact that the electrical supply passed to the circuit even when the main switch was in off position and the consumption of the domestic and commercial connection was properly and correctly recorded in the meters provided in the premises of the complainant.  It is also his case that the opposite parties had not filed any objection to the commission report and that the Forum below had not considered the inspection made by the 2nd opposite party as per Ext.A5.  It is the further case of the learned counsel that there was no misuse of energy or unauthorized extension committed by the complainant and the Forum below had gone wrong in dismissing the complaint.

          6. The learned counsel for the respondents/opposite parties argued that the Forum below had rightly dismissed the complaint though the respondents are aggrieved by the low rate of interest ordered by the Forum


below.  It is argued by the learned counsel that the consumption of the energy before and after the inspection in the premises of the complainant where domestic connection is taken was sufficient to prove that there was misuse of energy by the complainant from domestic purpose to the commercial purpose.  He has also submitted before us that the issuance of the bills were in accordance with the Rules and regulations prevailing in the Electricity Board at the time of inspection.

          7. On hearing the learned counsel for the appellant, respondents and also on perusing the records we find that it is the admitted case of all the parties that the complainant had an electric connection to his residence(ground floor) as consumer No.3134  and another connection to the 1st, 2nd and 3rd floors of the same building with consumer No.7509.  The appellant would say that he was regularly paying the charges  for the electricity consumed by him and he was unaware of the fact that the supply to the lodge did not pass through the main switch.  It is the case of the complainant that  though the electricity was not passing through the main switch the consumption was properly recorded in the meter installed in consumer No.7509 and there was no unauthorized connection from consumer No.3134 to consumer No.7509 to cause loss to the opposite parties.  But the opposite parties version is that the complainant was taking


the supply to consumer No.7509 from consumer No.3134 and it was done because the charges for domestic connection and commercial connection were different and the misuse was found out only during inspection by the APTS.  We have gone through the inspection report (site mahasar) prepared by the opposite parties and on a careful examination  of the same we find that the same is prepared by the officials of the KSEB and no independent person has signed in the mahasar.  It is argued by the learned counsel for the respondents that the scribe of the mahasar has been examined to prove the veracity of the site mahasar.  It is to be found that when the complainant has strongly disputed the contents of the site mahasar, it was incumbent on the opposite parties to examine an independent witness  to prove the case.  We find that the person who prepared the mahasar can only be treated as an interested witness.  Moreover it is seen that the 2nd opposite party has conducted an inspection in the premises of the complainant  and found that the supply  that  was given to lodge was passing through the  circuit without going to the main switch.  He  has also affirmed the said fact while examining him as OPW2.  The Forum would say that OPW2 had no business to inspect the premises of the  complainant when the dispute was under consideration of the  Deputy Chief Engineer. We are not inclined to agree with the said finding of the Forum below as it was the concerned


Asst.Executive Engineer who had inspected the premises of the complainant.  The Forum had also lost sight of the fact that there were 2 reports filed by the Advocate commissioner and expert which  were unchallenged.  In the backdrop of the fact that opposite parties failed in establishing and proving the site mahasar (Ext.B4) by examining an independent witness and in the light of the fact that the commission reports were unchallenged,  we are of the view that the case of the complainant can be believed to a greater extent.  We also find that the Forum below had ignored Ext.A5 which is a crucial document in the facts and circumstances of the case.  The mere fact that the consumption of energy in the same connection after the inspection has reduced to a considerable extent can not be treated as a ground that there was misuse of energy, unauthorized extension and unauthorized load in the premises.  Moreover in cases of theft, it was incumbent on the opposite parties to register a police complaint and opposite parties have no case that they had registered a criminal complaint against the complainant.  It is also to be found that they have not a case that the meters were tampered with or the meters were not recording the consumption made by the complainant  in his residence and in the other parts of the building. As a sequel to the above,    it is our irresistible conclusion that opposite parties have committed deficiency in service in issuing the impugned bills which have no  proper foundation.  We are inclined to allow the case of the complainant and the same is done accordingly.

          In the result the appeal is allowed and the order dated 31.3.09 in CC.9/08 is set aside.  The opposite parties/respondents are directed to cancel Ext.A3 and A4 demand notices issued to the complainant.  The opposite parties are also liable to pay Rs.2000/- as costs to the complainant for the proceedings through out.  It is also made clear that as the complainant had not adduced any evidence to substantiate the claim for compensation, there is no order as to compensation.

 

 

                                       S.CHANDRAMOHAN NAIR  : MEMBER

 

                                       VALSALA SARANGADHARAN : MEMBER

         

ps

 

         

 

 
 
[ SRI.S.CHANDRAMOHAN NAIR]
PRESIDING MEMBER

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