Kerala

StateCommission

A/14/591

jose - Complainant(s)

Versus

chairman, kerala state electricity board - Opp.Party(s)

r& t assosiates

29 Apr 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM

 

APPEAL NO. 591/14

JUDGMENT DATED 29/4/2016

  (Appeal filed against the order in C.C No.706/2009 dt 19/8/2014 on the file of CDRF, Thrissur)

  

PRESENT:

SHRI. V.V. JOSE                                      :        MEMBER

SHRI. K. CHANDRADAS NADAR           :        JUDICIAL MEMBER

 

APPELLANT:

            Jose S/o Chakkappan,

Pereppadan House, Avinissery P.O.,

Thrissur, Pin-680 313.

(By Adv:   Roy Varghese & Others)                    

                        Vs

RESPONDENTS:

1.  Kerala State Electricity Board –

Rep: by its Chairman, Vydyuthi Bhavanam,

Pattom P.O., Thiruvananthapuram-695 004.

 

2. Assistant Engineer, Kerala State Electricity Board,

Electrical Section, Ollur, Ollur P.O.,

Thrissur District-680 313.

(By Adv: B. Sakthidharan Nair)  

JUDGMENT

SHRI. V.V. JOSE  :  MEMBER

          This appeal is preferred by the complainant in C.C No.706/09 in which complaint was dismissed by CDRF, Thrissur ie. order dated 19/8/2014.

          2.  The case of the complainant in nut shell is as follows.   Complainant is conducting a packing case unit for his livelihood and he is the present consumer of the current connection.  The connection stands in the name of one Mr. M.P. Devassya who is expired.  Complainant was paying the current charge regularly.  Opposite party issued a bill for Rs.15,954/- dated 1/9/2009.  According to KSEB the amount is the short C.C in the month of April to August 2006.  Complainant states current charges were paid by him in time, so he is not liable to pay the alleged arrears.  Since there is a threat of disconnection by KSEB, he wants to stop it.  Hence this complaint. 

          3.  As per the counter averments, KSEB  contended as follows:

          The complainant is not a consumer.  The connection stands in the name of M.P Devassy and no application to change the ownership so far.  The complainant is conducting the unit with several workers for profit.      So also he is not a consumer as per Consumer Protection Act.  The power meter was replaced three times on 15/6/2004, 7/5/2005 and 22/7/2006.  Consumption was taken as per reading in the defective meter.  The board is entitled to impose average consumption of three months reading after the replacement of power meter as per terms and conditions of supply Section 33(2).  This was found by the internal audit wing; hence the demand notice was issued.  According to them there is no deficiency in service hence prayed for a dismissal of the complaint.  Initially after admitting the complaint an interim order of statusco was granted by lower forum.

          4.  Evidence consists of oral testimony of complainant as PW1 and Exbts. P1 to P7 were marked.  Opposite party has no oral evidence.  Exbts: R1 to R3 were marked on their side by consent.

          5.  The lower forum considered the rival contentions.  According to the complainant the packing case unit is for his livelihood.  But according to respondants the unit is for profit making, employing several workers.    Exbt: P7 is an authorization by Sri. Varghese George favouring the complainant to conduct the saw mill since 2001.  According to the forum below a person who is conducting a saw mill cannot take the contention of self employment and livelihood as per the Consumer Protection Act and hence this complaint is not maintainable before forum.  Further to the above forum found that complainant is challenging the demand notice issued by the opposite parties for Rs.15,954/- dated 1/9/2009.  But the complainant did not produced and marked the disputed bill.  Without producing the same forum cannot analyse the genuiness of the notice.  On this ground also the complainant is not entitled to get relief as sought.  The deposition of PW1 clearly shows that the connection still stands in the name of M.P. Devasy and the premises are in the name of his brother George.  He admitted  Exbt: P7 is the authorization given by George in favour of the complainant.  According to the respondants the power meter was replaced thrice and the bills issued at that time is as per the reading in the defective meter.  But according to PW1 it is not so.  The forum found that PW1 is unaware of it.  The Lower Forum dismissed the complaint considering the above findings.

          6.  Aggrieved by the above order complainant preferred this appeal on various grounds.  Apart from the formal grounds urged the appellant asserted in ground ‘C’ that the documentary evidences adduced by him were not considered by the forum.  His definite case is that the impugned bill under challenge was produced by him along with the complaint and sought to be marked as Exbt: P1 in his proof affidavit.  But the forum below overlooked this aspect.

          7.  We have anxiously gone through the case records.  We observed that the complainant has produced the impugned bill as early as on 19/10/2009 along with the complaint.  The bill was considered by the forum below while granting I.A.1008/09 and an order of status co was passed while granting the I.A. on 21/10/2009.  In the proof affidavit filed by the complainant in page 3, he has sought the forum below to mark the said bill dated 1/9/2009.  As Exbt: P1 and seven other documents produced subsequently were sought to remarked as Exbt: P2 to P8.  It appears that the forum below ignoring this averments in the affidavit marked only   Exbts: P1 to P7 and that too the seven documents produced by the complainant at the later point of time.  The impugned bill was resting in the file of the forum below without attention by the forum as well as the complainant.  It is evident  from the order of the forum below that Exbts: P1 to P7 are seen marked in the deposition and included in the appendix  of order of the lower forum.  While facts remains as above in Para 6 of the order of the lower forum dated 19/8/2014 the forum below accused the complainant for not producing and marking the impugned order dated 1/9/2009.  The forum states that “without producing the same (demand notice dated 1/9/2009) we cannot analyse the genuiness of the notice.  On this ground also the complainant is not entitled to get relief”.    This is an error apparent on the face of the records.  Hence we do not find merit on the findings of the forum below on the non production of the impugned bill dated 1/9/2009.  Hence the appeal appears to be remitted for fresh disposal after analysing the genuiness of the demand notice.

          8.  Further the finding of the lower forum, that as the complainant being conducting the saw mill is not amenable to take a plea of self employment and livelihood does not appear to be sound in principle.  The forum below relying the statement of the respondents that several workers will be involved in the work of saw mill and hence is a service provider and not consumer is also  requires further reconsideration.

          9.  We have gone through the deposition of complainant as PW1.      In the cross examination the opposite parties never raised a question regarding the volume of business or manpower used for running the saw mill by the complainant.  On the other hand no single question confronting the complainant that the plea of self-employment was raised by the opposite party in the cross examination.  Opposite party had not proved or produced any evidence to impeach the plea of self employment of the complainant is on record.  The lower forum without any cogent evidence to this aspect, how came to the conclusion that he is a consumer is a matter requires reconsideration.

          10.  From the bills produced the electric connection attached to the complainants premises comes under LT IV Tariff which is admittedly a tariff provided to the industrial establishments.  This aspect is to be considered by the forum below with cogent evidence and enquiry as otherwise, the complainant will be unlwawful enriched.  This also requires proper consideration by the forum below.

          11.  On these aspects we thought it is equitable and necessary that the case is to be remanded for a fresh disposal after considering all the available evidences and evidences further adduced by either parties.      We also make it clear that either parties should be afforded an opportunity for hearing also.

          12.  In this appeal the appellant, though has not made any prayer for remanding the case for a fresh disposal, we thought it is necessary that further evidence is required to dispose the matter legally.   We have ordered to set-aside the order of the lower forum dated 19/8/2014 with a direction that the case is to be disposed of afresh after affording opportunity to either party to adduce evidence and address the forum on their contentions.

          In the result, the order of the lower forum in C.C.No.706/2009 dated 19/8/2014 is, set-aside and the matter is remitted to the forum below for   de nova disposal.  No cost.

          Both parties should appear before forum on 30/5/2016.

                            

 

V.V. JOSE          :        MEMBER

 

 

K. CHANDRADAS NADAR  :  JUDICIAL MEMBER

 

 

Sa.

 

 

 

 

 

 

 

KERALA STATE CONSUMER

                                                                                       DISPUTES REDRESSAL

COMMISSION,    

                           THIRUVANANTHAPURAM.

 

 

 

 

APPEAL NO.591/2014

JUDGMENT DATED 29/4/2016

 

 

 

 

 

Sa.