By Smt. C.S. Sulekha Beevi, President,

1. Complainant is running a coconut drying unit for earning his livelihood by means of self employment. He is a consumer under opposite party for the electricity connection to this unit. The connection was provided as per a Minimum Guarantee agreement (hereafter mentioned as Minimum Guarantee Agreement). As per this agreement complainant has to remit Rs.1,395/- towards Minimum Guarantee Bond amount. Complainant had availed loan from Kerala State Financial Corporation in 2002. Due to financial difficulties complainant committed default in repay of the loan. Due to the default on 17-3-2006 Kerala State Financial Corporation took possession of the unit. Thus the unit was not functioning from 17-3-2006 onwards. Complainant had regularly paid the current charges till March, 2006. At the time of taking possession of the unit by Kerala Financial Corporation only one electricity bill dated, 13-3-2006 for Rs.8,321.33 was pending. In April, 2006 complainant contacted opposite party to pay the above pending bill along with Minimum Guarantee Bond amount and also informed that the unit has been taken possession by Kerala Financial corporation. Complainant wanted to continue the supply without disconnection. Opposite party then demanded Rs.20,000/- without any basis. Though complainant requested for bill opposite party did not furnish the same. Due to the adamant stand taken by opposite party the complainant was unable to pay the charges from March, 2006 onwards.

2. In August, 2007 a one time settlement was offered by Kerala State Financial Corporation and complainant made part payment of Rs.50,000/- to Kerala State Financial Corporation on 09-8-2007 towards the amount payable by settlement. The unit was thus handed back to the possession of complainant by Kerala State Financial Corporation on 10-8-2007. After getting possession of the unit, complainant inspected the unit for the purpose of restarting it's function. He found opposite party has dismantled the electricity connection to the unit. On enquiries made by complainant in order to have restoration of the supply opposite party demanded Rs.1,30,372/- towards arrears. The details of the amount were not furnished even after request. Therefore complainant applied under the RTI Act to the Assistant Engineer, Kolathur to give details of the bill. On 25-9-2007 the Assistant Engineer gave some vague details of the amount. As per these details it is seen that the supply was disconnected on 09-12-2006 and dismantled on 19-02-2007. complainant states that opposite party has not issued any bill after 13-3-2006. That though opposite party could have disconnected the supply immediately after the bill dated, 13-3-2006 became due, this was not done by opposite party. It is also stated that he is not liable to pay surcharges and other expenses after disconnection.

3. Complainant was in urgent need to restore the supply to restart the unit. He then gave a request to the Hon'ble Minister of Electricity to provide instalment facility to remit the bill. As per the direction of the Minister, the deputy Chief Engineer, Manjeri Circle permitted the complainant to remit the amount in instalments. Even though complainant was not liable to pay such huge bill amount, in order to have restoration of supply he remitted Rs.13,588/- on 18-12-2007 towards the first instalment. On 27-12-2007 opposite party restored the supply. Complainant paid Rs.10,796/- towards second instalment and Rs.14,078/- towards third instalment. Thus Rs.38,462/- was paid towards the arrear bill of Rs.1,30,372/- issued by opposite party. After restarting the unit complainant has paid regular current charges. Complainant submits that the bill for Rs.1,30.372/- dated, 25-9-2007 is issued without any basis and that complainant is not liable to pay the same, and the act of opposite party issuing such bill amounts to deficiency in service. He alleges that the act of Assistant Engineer in not furnishing the details of bill and making the complainant apply under RTI Act is also deficiency. The further allegation is that due to the act of opposite parties in dismantling the connection and not restoring the supply complainant had to run the unit on diesel engine. A diesel generator also had to be used for water and light. That an amount of Rs.3,54,325/- was incurred as expenses for 130 days for the use of diesel engine and diesel generator. That opposite party is liable to compensate the same. Hence this complaint for cancellation of the bill for Rs.1,30,372/- and for compensation and costs.

4. Version was filed by opposite party admitting that supply was provided under Minimum Guarantee Agreement. The service connection was effected on 04-5-2002. That the monthly Minimum Guarantee bond amount payable is Rs.1,518/- and not Rs.1,395/-. It is submitted that opposite party is not aware of the unit being taken over by Kerala Financial Corporation. That complainant has not reported about such incident. Opposite party denies the averment that complainant requested for details of bill. Opposite party admits that complainant paid current charges upto 3/2006. It is stated that charges from 4/2006 is pending. On enquiry it was understood that the unit was taken over by Kerala Financial Corporation. Since the unit was locked opposite party could not take the meter readings. Therefore average consumption was taken into consideration and bill was issued to the consumer. It is stated that complainant has not turned up to pay bills from 4/2006 onwards.

5. Complainant has to pay electricity charges for actual consumption on connected load or to pay the Minimum Guarantee bond amount + Meter rent which ever is higher. It is explained by opposite party that during the period of disconnection though there was no consumption of energy the complainant has to pay the Minimum Guarantee bond amount + Meter rent till the expiry of the Minimum Guarantee agreement period. The supply was disconnected on 09-12-2006 and notice of dismantling was issued on 08-02-2007. Since the unit was locked up the notice was not acknowledged by the consumer. So the notice was served by the substitution method and service was dismantled on 19-02-2007. Since the meter and C.T. was inside the building the same could not be taken at the time of dismantling. The final bill of Rs.1,30,372/- was prepared including the cost of metering equipments, arrears, and balance of Minimum Guarantee amount adding the surcharges. The consumer was charged on the basis of average consumption of last six months as per clause 19(5) since the premises was locked up. The complainant requested the restoration of service connection on 24-11-2007. Opposite party informed that supply could be restored only after payment of dues. That opposite party has acted according to statutory rules and that there is no deficiency in service. It is admitted that complainant has remitted Rs.13,588/-, Rs.10,796/- and Rs.14,078/- by way of three instalments towards the disputed bill.

At the time of dismantling the meter was inside the factory and the final reading was not available. After getting the final reading the bill was revised accordingly, taking the Minimum Guarantee amount and meter rent during the disconnection period. The interest on security deposit @ 4% on Rs.16,000/- amounting to Rs.960/- was also deducted from the charges for the month 1/2007. The bill is valid and complainant is liable to pay the same. The Assistant Engineer, Kolathur had furnished the details of bills when requested by complainant. If the complainant remitted the dues, restoration could have been provided immediately. Reconnection was given on 27-12-2007 after checking the wiring system. There is no deficiency on the part of opposite party. The arrear bill was revised after taking final reading and the revised bill amount is Rs.59,886/- as on 18-3-2008. Complainant has remitted Rs.31,126/-. The balance yet to be remitted is Rs.28,760/-. That complainant is not entitled to any reliefs.

6. Evidence consists of the affidavit filed by complainant and Exts.A1 to A9 marked for him. Opposite party filed counter affidavit and Exts.B1 and B2 marked for opposite party. Both sides have not adduced any oral evidence and did not seek any opportunity for the same nor did they file any applications for adducing oral evidence. Both sides adhered to and adopted to adduce evidence by affidavit and documents.

7. Points for consideration.

(i) Whether opposite party is deficient in service.

(ii) If so, reliefs and costs.

8. Point (i):-

Complainant challenges Exts.A3(b) bill dated, 25-9-2007 for Rs.1,30,372/- issued by opposite party. It is pleaded and affirmed by opposite party that this bills is revised and the amount now payable by the complainant is only Rs.59,886/- which is Ext.B2.

9. Since opposite party has already given up the demand of Rs.1,30,372/- and has revised/limited the demand to Rs.59,886/- as per Ext.B2 bill we confine and proceed to analyse the legality of Ext.B2 bill for Rs.59,886/-.

10. In Ext.B2 bill, opposite party has raised demand of the amount of Rs.8,321.53 for the period 3/2006 and Rs.7,383/- for the period 4/2006. Admittedly these amounts are pending as arrear. Thereafter opposite party has charged Rs.1,603/- being the minimum guarantee bond amount (Rs.1,518/-) and meter rent (Rs.85/-) for the period 5/2006 till 12/2007. Interest/surcharge for the above amount is added and the total arrived is Rs.59,885.53 after deducting interest on caution deposit for the month 1/2007.

11. Much thrust was laid by the counsel for complainant upon the contention that the complainant is not liable to pay the minimum guarantee bond amount from date of dismantling the connection till date of restoration. The different dates relevant for adjudication of dispute is as under:

13-03-2006 - Bill for Rs.8,321.53 pending

17-03-2006 - Kerala Financial Corporation took possession

09-12-2006 - Supply disconnected

08-02-2007 - Dismantling notice issued

19-02-2007 - Connection dismantled

27-12-2007 - Connection was restored

12. It was strongly argued on behalf of opposite party that the complainant is bound to pay the minimum guarantee bond amount for the agreed period irrespective of the fact of disconnection or dismantling. It is submitted that as per minimum guarantee agreement the complainant has to pay electricity charges for actual consumption and connected load or has to pay the minimum guarantee bond amount + meter rent whichever is higher. It is the case of opposite party that whether the supply is being used or disconnected the consumer has to pay the minimum guarantee amount + meter rent till the expiry of minimum guarantee period.

13. Against this the learned counsel for complainant, Sri.S.Prasad relied upon two decisions. In 1996 (3) CPR 296 the Hon'ble State Consumer Disputes Redressal commission (Kerala) in The secretary K.S.E.B. Vs. Smt.Sankaraswary Ammal which was decided on 13-3-1996, Appeal No.1270/1995 has held as under:

"It is seen that the supply was disconnected by the opposite parties as early as April, 1988. there was no demand made by the opposite parties all these years until the complainant sought restoration of connection in January, 1994. The conduct of the complainant itself is proof positive to establish that there was termination of contract of minimum guarantee. The opposite party has no case that after disconnection the opposite parties rendered any service to the complainant. We do not find any merit in the contention raised by learned counsel appearing for the Electricity Board that the consumer is liable to pay at the rate under the minimum guarantee agreement for the period during which no supply was made by the opposite parties to the complainant."

K.S.E.B. Vs. The State of Kerala and others I.L.R.2002 (3) page 483 decided on 13-11-2002, was a case in which the supply was disconnected by Kerala State Electricity Board after the land and factory premises was acquired by the Government for Nedumbasseri Airport. Thereafter Kerala state Electricity Board issued an arrear bill to the consumer demanding charges under the minimum guarantee agreement contending that the consumer is liable to pay the amount during the full period of 10 years. It was held as under:

"In the present case, it is the admitted position that the respondent-writ petitioner had never asked for the disconnection of the supply. The board had discontinued the supply in May 1997. The Board having itself discontinued the supply, it cannot claim that the consumer is bound to pay. The minimum guarantee agreement only makes the consumer liable to pay in a case where the Board is in a position to supply, but the consumer does not utilise the power. However, when the Board itself discontinues the supply, it can have no reason either in law or in equity to claim that the consumer is bound to pay.

The land in which the writ petitioner's unit was functioning as also the land in the surrounding area, through which the Board had laid its cables or lines, had been acquired by the Government. On acquisition of the land, the poles, etc., had to be removed. The supply of power had to be discontinued. In such a situation, the Board cannot enforce a minimum guarantee agreement against the consumer and say that it must pay for the full period of ten years."

14. Opposite party has not produced the minimum guarantee agreement along with it's conditions. Hence though opposite party contends that complainant has to pay the minimum guarantee amount plus meter rent even if supply is disconnected, such contention is unsupported by any evidence. Apart from Rs.1,518/- another amount Rs.85/- per month is also seen collected. Opposite party has not expressly stated that this is the charge towards meter rent. We are not able to follow that such huge amount (Rs.85/-) is charged every month towards meter rent. Opposite party has not stated the basis for demanding Rs.1,603/- per month from 5/2007 onwards. NO evidence is adduced as to what is the actual meter rent payable by complainant.

15. When the supply is dismantled there is no service rendered by opposite party. Insisting on the payment of minimum guarantee amount during this period, in our view, is illegal. Opposite parties have not raised any demand until the complainant applied for restoration. Opposite party has no case that after dismantling the connection the Board rendered any service to the complainant. The ratio in the above decisions are applicable to the facts of this case. We have no hesitation to hold that the collection of charges (Minimum Guarantee bond + meter rent) from the date of dismantling till restoration of connection is illegal. We find the claim of charges in Ext.B2 bill from 2/2007 till 12/2007 is illegal. Issuance of a bill without proper basis is deficiency in service. We find opposite party deficient in service.

16. Point (ii):-

Complainant prays for cancellation of the bill for Rs.1,30,372/-. During the pendency of this litigation the bill has been revised by opposite party to Rs.59,886/- as on 18-3-2008. As discussed earlier the amount of minimum guarantee amount + meter rent claimed in Ext.B2 bill for the period 2/2007 till 12/2007 having found to be illegal, the complainant is not liable to pay the same. We hold that issuance of revised bill deleting charges from 2/2007 till 12/2007 is highly necessary. Further we direct opposite party to collect only the minimum guarantee bond amount plus actual meter rent payable during the period from 5/2006 till 1/2007. Complainant is definitely liable to pay the charges for 3/2006 and 4/2006. Though complainant has claimed compensation for running the unit with diesel generator and diesel engine there is no sufficient evidence to establish the same. The witness who issued Ext.A8 bills has not filed any affidavit. He has not been examined to prove these documents or support the case of complainant regarding the expenses incurred by him for use of generator and diesel engine. Hence we disallow the prayer for such compensation. In our opinion issuance of the revised Ext.B2 bill would meet the ends of justice. By abundant caution we also hold that Ext.A2(b) bill for Rs.1,30,372/- is cancelled. Instead of awarding cost to the complainant we consider that waiving the surcharges during the pendency of this litigation would be sufficient relief to him.

17. In the result, we partly allow the complaint and order the following:-

(i) Ext.A2 (b) bill for Rs.1,30,372/- (Rupees one lakh, thirty thousand, three hundred and seventy two only) dated, 25-9-2007 is cancelled.

(ii) Ext.B2 bill for Rs.59,886/- (Rupees Fifty nine thousand, eight hundred and eighty six only) is also cancelled.

(iii) We order that opposite party shall issue revised Ext.B2 bill deleting all charges from the date of dismantling (2/2007) till 12/2007. Opposite party is also directed to collect only the minimum guarantee bond amount and actual meter rent during the period 5/2006 till 1/2007 while issuing the revised bill. The deduction given for interest on Caution Deposit shall also be considered in the revised bill. Complainant is liable to pay electricity charges for March and April, 2006 as stated in Ext.B2. Opposite party is directed to waive the surcharges during the pendencyof thelitigation ie; from the date of complaint till the issuance of revised bill.

(iv) The amount already paid by the complainant shall be deducted. Balance if any payable to complainant shall be adjusted to the future bills of the complainant. The complainant is at liberty to request for adjusting it to the charges of any other electricity connection owned by him.

(v) Time limit for compliance of the order is fixed as two months from the date of receipt of copy of this order.

Dated this 24th day of September, 2009.

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 A9

Ext.A1 : Cash receipt voucher for Rs.1,50,000/- dated, 09-8-2007 from complainant.

Ext.A2 : Photo copy of the request dated, 18-9-2007 by complainant to opposite party.

Ext.A3(a & b) : Monthwise arrear details of consumer No.6567015596/9 as on 25-9-2007

with covering letter dated, 25-9-2007 given by opposite party to complainant.

Ext.A4 : Copy of the letter dated, 17-11-2007 from Deputy Chief Engineer to

Assistant Engineer, KSEB., Kolathur.

Ext.A5 : Receipt for Rs.13,588/- dated, 18-12-2007 from opposite party to complainant.

Ext.A6(series) : Receipt for Rs.10,796/- dated, 28-01-2008 from opposite party to complainant.

Ext.A7(series) : Receipt for Rs.14,078/- dated, 16-02-2008 from opposite party to complainant.

Ext.A8(series) : Bills (10 Nos.) given by IBP Auto Services, Padaparamba to complainant.

Ext.A9 : Cash/Credit retail invoice for Rs.1,244.88 by Siraj Electricals to complainant.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 and B2

Ext.B1 : Photo copy of the monthwise arrear details of consumer No.6567015596/9 as on 25-9-2007 given by opposite party to complainant.

Ext.B2 : Photo copy of the revised arrear bill issued by opposite party to consumer No.15596/9 KLR

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER