By Smt. C.S. Sulekha Beevi, President,
1. Brief facts:- Complainant is the owner of the wood industries named ’Sithara Wood Industry’ situated at Edavanna. Complainant has been conducting the industry for the last 8 years and has been paying the electricity bills without fail. Opposite party conducted an inspection in the said industry and found that the capacitor used in the industry was not working properly. Opposite party thus issued an inspection bill dated, 14-4-2007 for Rs.4,472/-. In the bill it was stated that 20% additional amount would be charged till installation of new capacitor. Complainant paid the bill amount. As per instruction in the said bill, complainant purchased a new capacitor of 5KVAR/440 Volts on 05-5-2007 and installed it in the industry on the same date. The guarantee card issued by Company for the capacitor is produced along with complaint. Complainant also informed opposite party about the installation of the new capacitor. Based on this information and after verification opposite party thereafter issued regular bills from 16-5-2007 onwards without charging any additional amount. The bill dates and charges from 16-5-2007 till 10-4-2008 is quoted in the complaint. While so, on 26-4-2008 opposite party issued another inspection bill for an amount of rs.46,146/-. In the assessment details attached with the bill it is stated that the capacitor is not installed and therefore assessment is made for the years 4/2001 to 10/2002 and from 11/02 to 2/2005. The present inspection bill is issued for the period 2001 to 2005. The bill is illegal and complainant is not liable to pay the same. That the claim is barred by limitation. That this wood industry is the only livelihood of complainant and her family. If the electricity is disconnected complainant will be put to irreparable loss. Hence this complaint seeking to set aside the inspection bill dated, 26-4-2008, for Rs.46,146/-, and for such other reliefs. 2. Opposite party though served with notice has not appeared or filed any version. It is seen from the acknowledgement card that notice was received by opposite party (Assistant Engineer, Electrical Section, Edavanna) on 21-5-2008. On 16-6-2008 opposite party was absent and set exparte. The case was thereafter posted to various dates on 17-7-2008, 25-7-2008, 26-8-2008, 26-9-2008, 04-10-2008 and 22-10-2008. On 04-10-2008 complainant filed affidavit and documents. The counsel for complainant was heard on the matter on 22-10-2008 and the case was taken for orders on that date. Thus though sufficient time was available for opposite party to enter appearance and contest the case, opposite party has failed to do so. The case is thus proceeded with the evidence on the side of complainant alone. Exts.A1 to A6 marked for the complainant. 3. Complainant is aggrieved by the issuance of inspection bill dated, 26-4-2008 for Rs.46,146/- which is Ext.A4. According to complainant on 14-4-2007 opposite party conducted an inspection of the wood industry and issued an inspection bill for Rs.4,472/- and stated in this bill that 20% additional amount will be charged till the capacitor is changed. Ext.A1(a) is this bill in which opposite party has instructed to fit sufficient capacitor. It is affirmed by complainant that on 05-5-2007 she purchased a new capacitor and installed it on the same day. Ext.A2 is the guarantee card of this capacitor which shows the date of purchase as 05-5-2007. It is the case of complainant that opposite party was duly informed about the installation of the new capacitor. Thereafter opposite party issued regular bills without charging additional amount. While so on 26-4-2008 opposite party issued another inspection bill, Ext.A4, for Rs.46,146/-which is the bill challenged in this complaint. The details of this bill is furnished by opposite party in Ext.A5. It is seen from Ext.A4 and Ext.A5 that the short assessment is made for the period from 4/01 to 10/02 and from 11/2002 to 2/2005 for the reason of not installing a capacitor. Apparently after issuing Ext.A1(a) bill and directing the complainant to install capacitor opposite party has assessed the complainant for four years prior to the detection of deficient capacitor. This assessment in our view is totally illegal. Electricity charges once paid has to have some finality and it should not hang over the head of the consumer like a Democles Sword. The intention of the provision in Sec.56(2) of Indian Electricity Act, 2003 is to put a finality to the right of recovery of dues by the board. This section prescribes a time limit of two years. Hence the bill issued in 2008 for dues alleged to be for the years from 2001 to 2005 is per se barred by limitation. Further, as soon as instructions were received complainant installed a new capacitor. The act of opposite party issuing bill after bill upon the complainant, who is a woman and runs the industry for her livelihood is unjustifiable. Complainant has established a case in her favour. We hold opposite party deficient in service. Complainant is not liable to pay any amount as per Ext.A4 bill and it is only to be set aside. Complainant has already paid Rs.2,000/- on 07-5-2008 and Rs.14,087 on 27-9-2008 (2,000/- + 14,087/-) towards the amount in Ext.A4 bill. We have no hesitation to hold that complainant is entitled to refund of this amount. As per Regulation 24(b) of the Kerala Electricity Supply Code, “if it is established that after payment of the bill, the Board has overcharged the consumer, the excess amount shall be repaid within two months with interest at twice the bank rate.” When the board penalises a consumer with interest at the rate of twice the bank rate we are of the view that the complainant should receive refund with interest. We consider that refund of the amount paid by complainant towards the Ext.A4 bill with interest @ 6% till payment would meet the ends of justice. 4. In the result we allow the complaint and order the following:- (i) Ext.A4 Inspection bill of Rs.46,146/- dated, 26-4-2008 stands cancelled. (ii) opposite party shall repay Rs.16,087/- to complainant with interest @ 6% from the date of complaint till payment.
(iii) In the alternative complainant is free to avail option of getting the above amount adjusted to her future bills if necessary.
(iv) We make no order as to costs. (v) The time for complying this order is fixed as one month from the date of receipt of copy of this order.
Dated this 3rd day of December, 2008.
Sd/- C.S. SULEKHA BEEVI, PRESIDENT
Sd/- MOHAMMED MUSTAFA KOOTHRADAN, Sd/- MEMBER E. AYISHAKUTTY, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil Documents marked on the side of the complainant : Ext.A1 to A6 Ext.A1 : Demand and Disconnection notice dated, 14-4-2007 for Rs.4,442/- by opposite party relating to consumer No.6548008504 Ext.A2(a & b) : Capacitor Test Certificate Ext.A3series : Demand and Disconnection notice and receipts (12 Nos.) Ext.A4 : Demand and Disconnection notice dated, 26-4-2008 for Rs.44,146/- by opposite party relating to consumer No.6548008504 Ext.A5 : Assessment statement. Ext.A6 : Receipt for Rs.14,087/- dated, 26-4-2008 from opposite party to consumer No.6548008504 Witness examined on the side of the opposite parties : Nil Documents marked on the side of the opposite parties : Nil
Sd/- C.S. SULEKHA BEEVI, PRESIDENT
Sd/- MOHAMMED MUSTAFA KOOTHRADAN, Sd/- MEMBER E. AYISHAKUTTY, MEMBER By Smt. C. S. Sulekha Beevi, President,
This case was originally disposed by this Forum on 03-12-2008. Opposite party was then exparte in the case. An appeal was preferred by opposite party and vide judgment dated, 03-8-2009 in F.A. No.258/09, the case was remanded to this Forum for reconsideration on condition that opposite party deposits cost of Rs.2,000/-. The cost was paid by opposite party and the case was again taken on the file of this Forum on 18-9-2009.
1. Facts: Complainant is conducting a wood industry in the name and style of 'Sithara Wood Industry' from 2000 onwards. She is a consumer under opposite party for the supply of electricity to this industry. Complainant has regularly paid the bills issued by opposite party and that there are no arrears. While so, opposite party conducted an inspection in the premises and found that the capacitor was not working properly. Opposite party then issued a bill dated, 14-4-2007 for an amount of Rs.4,427/- imposing a penalty of 20%. It was also stated in the bill that penalty of 20% will be charged till the adequate capacitor is fitted. This penalty bill was paid by the complainant. A new capacitor was purchased and installed by the complainant on 05-5-2007 and it was informed to opposite party. After checking and verifying the new capacitor opposite party has issued regular bills without imposing any penalty thereafter. Almost one year after this, ie., on 26-4-2008 opposite party issued an inspection bill demanding to pay Rs.46,146/-. This bill is issued for 20% extra charges for the period 4/2001 to 2/05 stating that there was no capacitor during this period. That the penal bill issued is baseless, illegal and time barred. Issuing such bill is deficiency on the part of opposite parties. Hence this complaint.
2. Opposite party filed version admitting the complainant to be a consumer. It is stated that bills imposing 20% additional charges was issued for the months 2/2007, 3/2007 and 4/2007 on finding that the capacitor connected to the motor was not functioning properly. The bill for Rs.4,472/- was issued for the month 4/2007 alone. It is admitted that complainant has paid all these bills. On 05-5-2007 the complainant installed new capacitor and so the imposition of 20% additional charges was put an end to. That complainant has paid regular bills thereafter and that there are no arrears. On conduct of auditing by the Regional Audit Officer, Manjeri of the accounts of Edavanna electrical section it was found that the capacitor of the complainant was not functioning from 4/2001 till 2/2005. Hence as per the inspection report of the audit officer the consumer was issued bill imposing 20% additional charges for the above period. That the bill issued on 26-4-2008 is for the 20% extra charges for the non- functioning of the capacitor during the period 4/2001 till 2/2005. That the Board can realise the arrears that is due prior to the coming into force of Sec.56(2) of Indian Electricity Act, 2003. That the bill issued is legal and proper. That complaint is liable to pay the same.
3. Evidence consists of the proof affidavit filed by complainant and Exts.A1 to A5 marked for complainant. Opposite party filed counter affidavit. No documents marked for opposite party. Either side has not adduced any oral evidence.
4.Points for consideration:- (i) Whether opposite parties are deficient in service. (ii) If so reliefs and costs.
5. Point (i):- The complainant is aggrieved by the issuance of bill for Rs.46,146/- dated, 26-4-2008 which is Ext.A4. It is the case of opposite party that on inspection of the premises the capacitor connected to the motor was found not working properly. Hence bills imposing 20% additional charges were issued for the months 2/2007, 3/2007 and 4/2007. On 05-5-2007 admittedly the complainant installed a new capacitor. Thereafter regular bills without imposing any additional charges were issued. But on conduct of audit inspection of the accounts, it was found that the capacitor was snot working properly from 4/2001 till 2/2005. Therefore as per audit inspection report, Ext.A4 bill was issued on 26-4-2008 to the complainant imposing additional charges of 20% for the period 4/2001 to 2/2005.
6. It is submitted on behalf of the complainant that the bill issued for an earlier period without conducting any inspection of the premises is baseless and illegal. It is also stated that opposite party had given the connection only after the complainant completed all the requirements to run the wood industry including the installation of the capacitor. Opposite party does not have a case that the capacitor was not installed. Their allegation is that the capacitor was not working for the period 4/2001 to 2/2005. In para 7 of the counter affidavit opposite party swears as under: “പരാതിക്കാരിക്ക് നല്കിയ ബില്ലിന്െറ അടിസ്ഥാനം എടവണ്ണ എലക്ട്രിക്കല് സെക്ഷനിലെ അക്കൗണ്ട് 4/2001 മുതല് 2/2005 വരെയുളളത് മഞ്ചേരി റീജ്യണല് ഓഡിറ്റ് ഓഫീസര് ഓഡിറ്റിംഗ് നടത്തി ഓഡിറ്റിംഗ് പ്രസ്തുത കാലയളവിലും കണ്സ്യൂമറുടെ കപ്പാസിറ്റര് പ്രവര്ത്തിച്ചിരുന്നില്ലാത്തതുകൊണ്ട് അതുപ്രകാരം അത്രയും കാലത്തേക്കുളള ബില് തുകയുടെ 20% അഡീഷണല് ചാര്ജ്ജ് കൂടി നിയമപ്രകാരം കണ്സ്യൂമര് അടക്കേണ്ടതുണ്ട്. റീജ്യണല് ഓഡിറ്റ് ഓഫീസര് ഇന്സ്പെക്ഷന് റിപ്പോര്ട്ടിന്െറ അടിസ്ഥാനത്തിലുളള ബില്ലാണ് 26-04-2008-ല് നല്കിയത്. പ്രസ്തുത ബില് തുക 46,146/- രൂപ എന്നത് ശരിയാണ്.”
Ext.A5 contains the details of assessment of the disputed bill. In Ext.A5 it is seen stated that 20% additional charges are imposed because the capacitor is not installed. This assessment is in total contradiction to the affirmation by opposite party in the counter affidavit, where in it is stated that the 20% additional charges are imposed due to the non-functioning of the capacitor. Opposite party has no consistant ground for imposing the additional charges. Opposite party has no case that any inspection of the premises was conducted during the alleged period to conclude that the capacitor was not functioning. Counsel for complainant relied upon the decision rendered in E.P. Ahamedkoya Vs. The K.S.E.B. And Others 2003(2) KLT 297 where it was held that “In the matter of electrical installations, it is not unusual that some minor parts of the system go wrong, off and on very often. This may not be noticed by the consumer at all. In such cases, it should be the duty of the Board to point out the violation or lapses to the consumer and give reasonable time to the consumer to rectify the defect rather than forcing the consumer to approach this Court as the last resort under Article 226 of the Constitution.” In case of defect of installations the consumer has to be given a notice informing about the defect and directing to rectify the defect. It is against natural justice to impose additional charges without informing the consumer about the defect in installation. The built in measures of auditing should not be at the whims and fancies of the officers and harassment to consumers. In the present case, it is total negation of justice. In the year 2008 the complainant has been issued a bill imposing extra charges stating that the capacitor was not installed for the period 2001 till 2005. The connection was given by opposite party in the year 2000 after approving the installations. Opposite party does not have a case that any site inspection was conducted till 2005. The issuance of the bill is unsupported by reliable evidence to show that there was no capacitor or that capacitor was not functioning. Per se the bill is unsustainable and illegal.
7. The counsel for complainant has also vehemently argued that in any case the bill is time barred as per Sec.56(2) of Indian Electricity Act, 2003. This argument has some force. Sec.56(2) reads as under: “Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.”` In the instant case, admittedly the complainant has paid all bills and there are no arrears. The disputed bill was issued by imposing 20% additional charges for a period earlier to the date of issue. There are no arrears and so the amount as per Ext.A4 becomes due only when opposite party imposes the additional charges. Ext.A4 bill has become first due only when opposite party has imposed the additional charges in 2008. It is therefore barred by limitation. Issuing bills violating the provisions of law and without base is deficiency in service. We find opposite parties deficient in service.
8. Point (ii):- Complainant claims for cancellation of the bill which is only to be allowed. We consider that this would be adequate relief to the complainant.
9. In the result, we allow the complaint and order the following:- (i) Ext.A4 bill dated, 26-4-2008 for Rs.46,146/- is can celled. Complainant is not liable to pay any mount as per this bill. Any amount paid by the complainant towards this bill shall be adjusted to her future electricity bills. (ii) Time for compliance of this order is fixed as one month from the date of receipt of copy of this order.
Dated this 8th day of June, 2010.
Sd/- C.S. SULEKHA BEEVI, PRESIDENT
Sd/- MOHAMMED MUSTAFA KOOTHRADAN, Sd/- MEMBER E. AYISHAKUTTY, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil Documents marked on the side of the complainant : Ext.A1 to A5 Ext.A1 : Demand and Disconnection notice dated, 14-4-2007 for Rs.4,472/- from opposite party to complainant. Ext.A2 : Guarantee Card Ext.A3 : Demand and Disconnection notice dated, 16-5-2007 for Rs.3,577/- from opposite party to complainant. Ext.A4 : Demand and Disconnection notice dated, 26-4-2008 for Rs.46,146/- from opposite party to complainant. Ext.A5 : Photo copy of the assessment chart. Witness examined on the side of the opposite parties : Nil Documents marked on the side of the opposite parties : Nil
Sd/- C.S. SULEKHA BEEVI, PRESIDENT
Sd/- MOHAMMED MUSTAFA KOOTHRADAN, Sd/- MEMBER E. AYISHAKUTTY, MEMBER
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