KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL Nos. 1104/04 &1122/04 JUDGMENT DATED: 30-01-2010 PRESENT: SMT. VALSALA SARANGADHARAN : MEMBER SHRI. S. CHANDRA MOHAN NAIR : MEMBER APPEAL No. 1104/2004 1. The Secretary, : APPELLANTS K.S.E.B., Thiruvananthapuram. 2. The Asst. Executive Engineer, Electrical Major Section, Ettumanoor. 3. The Executive Engineer, Electrical Division, Vaikom. 4. Deputy Chief Engineer, Electrical Circle, Kottayam. (Rep. by Adv. Sri. B. Sakthidharan Nair) Vs Cross Field Rubber Company, : RESPONDENT Parolickal, Athirampuzha, Kottayam rep. by its Partner M.K. Simon. APPEAL No. 1122/2004 Cross Field Rubber Company, : APPELLANT Parolickal, Athirampuzha, Kottayam rep. by its Partner M.K. Simon. (Rep. by Adv. Sri. T.L. Sreram) Vs 1. Kerala State Electricity Board : RESPONDENTS Represented by its Secretary. 2. The Asst. Executive Engineer, Electrical Major Section, Ettumanoor. 3. The Executive Engineer, Electrical Circle, Vaikom. 4. Deputy Chief Engineer, Electrical Circle, Kottayam. (Rep. by Adv. Sri. B. Sakthidharan Nair) COMMON JUDGMENT SHRI.S. CHANDRA MOHAN NAIR : MEMBER These appeals are preferred by the opposite parties and the complainant respectively challenging the order dated 12-11-2004 of CDRF, Kottayam in OP No. 259/02. By the impugned order the Forum below has directed the complainant to remit Ext.A2 bill and cancelled Ext.A5 bill for Rs. 26,281/- and Ext.A11 bill for Rs. 87,556/- with a costs of Rs. 1,000/- to be paid by the opposite parties. 2. It is the case of the complainant that he is a consumer of the opposite parties more particularly coming under the second opposite party with consumer No. 7699 and that on 09-08-2000, the officers of the first opposite party came to the premises of the complainant and inspected the meter. It is his further case that on 14-05-2000 a bill for Rs. 55,395/- was issued to him alleged to be the escaped consumption consequent to non-working of one phase of the CT meter. On enquiry he was made to understand that the bill was the short assessment for the period from 02/00 to 08/00. The complainant approached the Hon’ble High Court of Kerala and obtained an interim stay restraining the recovery of the bill amount. However, the same was disposed of with a direction to the opposite parties to reconnect the electric supply of the petitioner on receiving Rs. 20,000/- from the complainant. The complainant was given liberty to approach the Executive Engineer, the 3rd opposite party with an appeal for settling the dispute. The complainant has further stated that in the meanwhile there was an inspection on 27-07-2001 by the opposite parties and a second bill was issued to him for a sum of Rs. 26,281/- on the guise that there was again non-functioning of the CT meter and that one lead of the CT meter was found pulled out from the terminal creating non-recording of the consumption through that phase. The complainant has also submitted before the Forum that though he has approached the 3rd opposite party for settling the dispute, it was shocking for him to get a disposal against him with a further direction to the second opposite party to issue bill for the unbilled portion from 09-08-2000 to 14-05-2001 by which a bill for Rs. 87,556/- was issued by the second opposite party. Alleging deficiency of service in issuing the said bills, the complaint was filed praying for directions to the opposite parties to cancel all the 3 bills issued to him and refund the sum of Rs. 20,000/- deposited by him with compensation and costs. 3. Resisting the complaint, the opposite parties filed a common version wherein it was contended that the consumer/complainant was coming under LT IV category and that on 09-08-2000 the APTS had inspected the premises of the complainant wherein it was found that one phase of the CT meter was not recording the actual consumption and that a short assessment bill for a sum of Rs. 55,395/- was issued to the petitioner which was in accordance with law. It was also submitted by the opposite parties that on 27-07-2001 also they made an inspection of the premises and found that the consumption was much below the expected level even after normalizing the meter and on inspection it was found that one of the lead wires of the CT fitted to the meter was seen pulled out from the energy meter creating ‘under reading’ in the meter. Finding that there was theft of energy they disconnected the service connection and a penal bill for Rs. 26,281/- was assessed and issued which the complainant was liable to pay. However, the opposite parties also submitted that as per the directions contained in the OP filed by the complainant, the reconnection was effected on remitting Rs. 20,000/- by the complainant. It was also their case that as the meter was not working for the period from 09-08-2000 to 14-05-2001 another short assessment bill for Rs. 87,556/- was issued consequent to the directions of the 3rd opposite party who had disposed of the appeal petition filed by the complainant in accordance with the directions of the Hon’ble High Court. The opposite parties submitted before the Forum that the complainant was liable to pay all the three bills as the bills were issued as per the rules and regulations of the KSE Board. 4. The evidence consisted of the affidavits filed by the complainant and second opposite party. On the side of the complainant, Exts. A1 to A13 were marked. On the side of the opposite parties, DW1 and DW2 were examined and Exts. B1 to B8 were marked. It is based on the said findings that the Forum below passed the impugned order. 5. Heard both sides. 6. The learned Counsel for the appellants in Appeal 1104/04 has submitted before us that the order of the Forum below in as much as upholding the veracity of Ext.A2 is correct whereas he argued that the Forum below has gone wrong in cancelling Ext.A5 and A11 bills. It is his very case that all the three bills ought to have been directed to be paid by the complainant. Relying much on Ext.B2 he submitted before us that the complainant himself has been a witness in the site mahazar prepared by the Assistant Executive Engineer, the second opposite party, wherein the complainant has admitted that when applying load, the 3rd phase was not working though he has also stated that no lead wire was pulled out from the CT or that the terminal seal cover was removed. It is also the case of the appellants that the scribe of the said mahazar was examined as DW2 and that the deposition of DW2 was not disproved by the complainant. Hence it is his case that the issuance of Ext.A5 bill was in accordance with the provisions of the conditions of supply and that the disconnection was also justified by him. 7. The cancellation of Ext.A11 bill was also challenged by the learned Counsel for the appellants. He has argued that the bill was issued consequent to the directions of the 3rd opposite party who was the appellate authority as per the directions of the Hon’ble High Court. It is also his case that the bill was issued consequent to the finding that on 27-07-2001, the opposite parties detected theft of energy and in a case where theft of energy is detected, the issuance of the bill for Rs. 87,556/- was also to be upheld by the Forum below. Thus, arguing for the position that the Forum below has erred in cancelling Ext.A5 and A11 bills and also awarding costs, he prayed for allowing the appeal thereby dismissing the complaint in toto. 8. The learned Counsel for the appellant in Appeal 1122/04 submitted that the Forum was very much right in cancelling Ext.A5 and A11 bills whereas the Forum below has gone wrong in disallowing the prayer for cancellation of Ext.A2 bill for Rs. 55,394/. The learned Counsel relied on Ext.B8, which is the copy of the site mahazar prepared by the opposite parties. It is submitted by him that the said mahazar was marked though there was strong objection by the complainant on the ground that it was a concocted document and even when there was a prayer for producing the original, the opposite parties had failed in doing so. The learned Counsel argued before us that the burden of proving Ext.B8 mahazar was on the side of the opposite parties and that it was the duty of the opposite parties to produce the original before the Forum below. He has also submitted that at one point, the opposite parties represented that the original was before the Hon’ble High Court and in another point they have filed an IA for a direction to the complainant to produce the original before the Forum. Though the Forum below has disallowed the IA, it is the case of the learned Counsel for the complainant/appellant that the Forum below has relied on a very curious position that an employee of the complainant who had alleged to be signed in the mahazar was not examined by the complainant. He has submitted before us that the site mahazar produced as Ext.B8 ought not have been accepted by the Forum below as it was a concocted document on the ground that the opposite parties had failed in producing the original and had taken a dubious stand in the production of the said document. He has also advanced the contention that the Forum below ought to have allowed the complaint in toto. 9. On hearing the learned Counsel for the appellants in both the appeals and on perusing the records, we find that it is the admitted case of both the parties that three bills were issued to the complainant by the opposite parties on the ground of non-recording of consumption through one phase of the CT meter. The first bill (Ext.A2) was issued consequent to the inspection by the opposite parties on 09-08-2000. The second bill (Ext.A5) was issued consequent to the inspection on 27-07-2001 and the 3rd bill was seen issued (Ext.A11) consequent to the instruction of the 3rd opposite party while disposing the appeal filed by the complainant in accordance with the directions of the Hon’ble High Court. On a careful examination of the facts and circumstances leading to the issuance of the above said bills, we find that Ext.A2 bill is issued based on Ext.B8 site mahazar. On a perusal of Ext.B8, it is found that the same is a photocopy of the mahazar said to have been submitted before the Hon’ble High Court. The complainant has strongly disputed the veracity and legality of Ext.B8. It is under objection that the said copy of the mahazar is marked as Ext.B8 by the Forum below. The Forum below has found that the non-production of original of Ext.B8 is not of much consequence as a witness who was an employee of the complainant had signed in the mahazar and the complainant has not disputed the same. But on a careful examination, we find that the opposite parties had issued the bill based on the document marked as Ext.B8. It is not in dispute that the complainant has disputed the marking of the said document as it was only the photocopy. The opposite parties had submitted that the original was produced before the Hon’ble High Court. But it is found that on a later date they have filed an IA (IA No. 191/04) for a direction to the petitioner to produce the original of Ext.B8. We are not in a position to understand how such a stand could be taken by the opposite parties in the production of the original of the document. If the opposite parties were correct in the statement that they had produced the original before the Hon’ble High Court, they could have obtained a certified copy of the same from the Hon’ble High Court or they could have filed an affidavit to that effect. The Forum below has observed that the second opposite party has not mentioned anything about the production of the said original of the document in the affidavit filed by him. Moreover, it is argued by the opposite parties that one Aji Palakulath who was the supervisor of the complainant had signed in the said mahazar. The opposite parties ought to have taken efforts to examine the said witness. But no efforts are seen taken by the opposite parties in doing so. When a party is relying on a document for issuing a particular bill, it is for that party to establish his case by examining the witnesses or to produce the original rather than shifting the burden to the other side. In our opinion, the Forum below was not correct in finding that the non-production of the original of Ext.B8 is not of much consequence. The said finding could have been appreciated if the opposite parties had taken a consistent stand or if they had made some effort to examine the witnesses. Though DW1 the person who had prepared the disputed document has been examined, he was also not successful in conclusively proving the case of the opposite parties that there was a surprise inspection by the APTS and one phase of the CT was not working whereas he has himself stated that there was no tampering in the meter. In such circumstances, we are of the opinion that the Forum below was not correct in directing the complainant to pay the bill amount contained in Ext.A2. 10. The learned Counsel has advanced a contention that if the complainant was dissatisfied with the disposal of the appeal by the Executive Engineer, he ought to have again approached the Hon’ble High Court only and that the filing of a complaint before the Forum against the dismissal of the appeal is against rules. But we are not inclined to accept the said contention of the learned Counsel on the ground that Section 3 of the CP Act gives ample powers to the complainant to seek his remedy before the CDRF also. Moreover, the order of the Executive Engineer is not a final one and the complainant is at liberty to approach the CDRF, which is a quasi-judicial Authority. In such circumstances we do not find any error in the filing of the complaint by the complainant before the Forum below for getting his grievances redressed. 11. It is also noted that Ext.A5 bill for Rs. 26,289/- was issued based on Ext.B2. On a perusal of Ext.B2, we find that the same is prepared by the Assistant Executive Engineer and witnessed by the complainant. The complainantt himself has admitted that one phase was not working when load was connected to the 3rd phase. Moreover, the scribe of the mahazar, the Executive Engineer was examined as DW2. Nothing is forthcoming to discredit the preparation of Ext.B2 or the finding that one phase of the meter was not working and hence we find that the issuance of Ext.A5 was in accordance with law and the disconnection was also proper. In such a situation the order of the Forum below in cancelling Ext.A5 bill cannot be supported by us. The prayer of the opposite parties to uphold the issuance of Ext.A5 bill can only be allowed and we are of the view that the complainant is liable to pay the bill amount covered under Ext.A5. 12. Ext.A11 bill for Rs. 87,556/- is also cancelled by the Forum below. The learned Counsel for the appellants/opposite parties would argue that the said bill was issued as per the directions of the Executive Engineer who was the appellate authority to decide on the merits of Ext.A2 bill. It is observed that the said Engineer has not only dismissed the appeal of the complainant but also issued directions for serving a bill to the complainant for the period from 09-08-2000 to 14-05-2001 alleged to be the unbilled units for the above period. The learned Counsel would further argue that on 27-07-2001, the opposite parties detected theft of energy and it was consequent to such detection that Ext.A5 bill was issued. It is also the case of the appellants/opposite parties that the complainant might have pilferaged energy from 09-08-2000 to 14-05-2001 as the consumption was not in accordance with the expected pattern. We are not inclined to accept the said contention of the learned Counsel for the appellants/opposite parties on the ground that there is no supporting evidence to find that the complainant had done any mischief during the above period or that the opposite parties had taken such a contention or stand at the first instance itself ie, on 27-07-2001. They have issued Ext.A5 bill on the finding that there was theft of energy and they have imposed penalty at three times and the said bill is found liable to be paid by the complainant. In the said circumstances, the imposing of a further penalty seems to be an afterthought and as there is no supporting evidence also we are not inclined to interfere with the findings and conclusions of the Forum below in cancelling Ext.A11 bill for Rs. 87,556/-. In the result, Appeal 1104/04 is allowed in part thereby the complainant/respondent is liable to pay Ext.A5 bill issued by the appellants and the appellants can recover the same as per law. The amount of Rs. 20,000/- remitted by the complainant/respondent can be adjusted towards the liability under Ext.A5 bill. Appeal 1122/04 filed by the complainant is allowed thereby the bill for Rs. 55,394/- issued as per Ext.A2 is cancelled. Thus, the order of the Forum below is modified as a whole thereby the complainant is liable to pay the charges as per Ext.A5 bill and the other two bills are cancelled. The cost ordered by the Forum below is also sustained. However, in the facts and circumstances of the present appeals, the parties are directed to suffer their respective costs. S. CHANDRA MOHAN NAIR : MEMBER VALSALA SARANGADHARAN: MEMBER Sr. | 
