Delhi

East Delhi

CC/523/2014

M.C JOSHI - Complainant(s)

Versus

DELHI JAL BOARD - Opp.Party(s)

03 Jul 2014

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVIENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CC No.523/2014:

In the matter of:

Sh. M.C.Joshi

Through General Attorney

Sh. S.C.Nirwani

22, Mausam Vihar, Delhi – 110 051

Complainant

Vs.

Delhi Jal Borad

Varunalaya Phase II, Karol Bagh,

New Delhi – 110 005

Respondent

 

Date of Institution : 06/06/2014

                                                                                    Date of Order          : 11/05/2015

 

ORDER

 

Ms. Poonam Malhotra, Member:

 

The brief conspectus of facts of the present complaint are that the complainant is the subscriber of Water Connection bearing new K.No.0248130000 provided by the respondent.  The delivery of water to the said connection has been as per the details mentioned as under:

From	To	Days	Qty (in Kl)
18/02/2012	08/05/2012	80	2
08/05/2012	03/08/2012	87	13
03/08/2012	17/01/2013	167	3
17/01/2013	11/04/2013	84	1

 

The said water meter stopped functioning at a reading of 431.99 somewhere after 11/04/2013 and the respondent reported the meter reading as “No Status” as on 24/06/2013 & for 06/09/2013 as “Vapoured / Moistured Meter” and charged the complainant for 1 Kl in each of the two bills.  On 02/06/2014 the respondent sent an SMS on the mobile of the son of the attorney of the complainant calling upon him to pay bill amount of Rs.3,043/- by 19/06/2014 to avoid penalties but no bill was delivered to him and it only delivered a slip demanding Rs.3,043/- without giving any details for the demand so raised.  The complainant accessed the website of the respondent to take a print out of the bill dated 02/06/2014.  From the bill it was revealed that the respondent had charged the complainant for consumption @ 22 Kl per month i.e., 197 Kl for 269 days whereas the actual consumption during the last 486 days had been only 19Kl, average of which comes to 1.17283 Kl per month.  The complainant has challenged the bill raised arbitrarily especially when the water supply is very limited for only a few hours a day and that too at a very low pressure and the complainant is constrained to use ground water to meet his requirements.  Besides raising arbitrary bill on average basis it is alleged that the respondent have started a new charge under the name “Service Charge” without rendering any new service.  Alleging deficiency in service and unfair trade practice on the part of the respondent, the complainant has prayed for directions to the respondent to revise the bill for connection of the complainant based on actual average consumption by the complainant, remove the service charge for the last two years and credit the same to the connection of the complainant, Rs.50,000/- as compensation for harassment, mental pain and agony and the cost of present litigation.

 

Alongwith this complaint the complainant had moved an application u/s 13(3)(b) of the The Consumer Protection Act, 1986 for directions to the respondent to raise the provisional bill based on actual average of 1.17283 Kl per month and accept the payment as the average taken by the respondent is arbitrary and against the norms.  Notice was issued to the respondent to file their objections and directions were issued to the respondent to raise the bill of the premises in question strictly on the basis of the water consumed from 06/06/2014 to the date of issuance of bill, and if it is not possible the respondent was directed to raise the bill on the basis of minimum average as per the category of connection installed at the premises of the complainant.  They were also restrained to disconnect the water connection of the complainant during the pendency of the present complaint.

 

            Notice was issued to the respondent. Ld. Counsel for the respondent, Sh. S.P. Saini, appeared for the respondent but neither objections to the application u/s 13(3)(b) of the The Consumer Protection Act, 1986 were filed nor did they file the written statement. Case proceeded exparte against them vide order dated 05/01/2015.  An application was moved by the Ld. Counsel for the respondent on 30/03/2015 for recalling the exparte order and the same was dismissed in view of the established position of law on this point as this Forum has no power to recall or review its own orders in view of the judgment of the Hon’ble Apex Court in Rajiv Hitendra Pathak vs. Achyut Kashinath Karekar in CA No.4307 of 2009.

            Evidence by way of affidavit filed by the complainant in support of his case has not been controverted by the respondent. Besides reaffirming the allegations made in the complaint it is further stated that the respondent had demanded a sum of Rs.5,427/- payable by 29/12/2014 vide SMS dated 11/12/2014. It is further stated that the defective meter had been changed vide Completion Report dated 07/07/2014 annexed as Ex. CW-1/10 and a copy of the same had been submitted in the office of the respondent vide Diary No.724 dated 07/07/2014.  The reading of the New Meter as on 29/02/2014 as per the last bill is 36 Kl.   The respondent had sent a SMS on 02/01/2015 that the notice for non-payment of dues has been issued in latest bill for Rs.5,426.36 and on 14/01/2015 it sent notice of disconnection for non-payment of the demand of Rs.5,426.36.   

            Heard the Ld. Cls. for the parties and perused the record.             

            On threadbare scrutiny of the record, it is clear that the complainant is a subscriber of Water Connection bearing new K.No.0248130000 and the meter installed against the K.No.0248130000 is a private meter i.e., the meter provided by the Consumer/Complainant.  It is evident from the perusal of the copies of the bills dated 08/05/2012, 03/02/2013, 12/03/2013 and 06/05/2013 filed on record as Papers 4 to 8 with the complaint that the respondent had raised bills pertaining to the period from 18/02/2012 to 11/04/2013 on the basis of actual meter readings recorded by it and this fact has not been refuted by the respondent that during the period from 18/02/2012 to 11/04/2013 i.e., 419 days the complainant had consumed only 19 Kl of water in all.  As per the bill dated 06/05/2013 raised on the basis of actual meter reading the reading reflected by the meter as on 11/04/2013 was 431 and the status of the meter was OK.  This fact confirms the statement of the complainant that the said water meter stopped functioning at a reading of 431.99 somewhere after 11/04/2013.  It is also evident from the bills with Bill Dates 12/07/2013 & 28/10/2013 placed on record by the complainant that the respondent had reported the status of the water meter as on 11/04/2013 as OK with reading of 431 and “No Status” as on 24/06/2013 in the bill with Bill Date 12/07/2013 & as “Vapoured / Moistured Meter” as on 06/09/2013 in the bill with Bill Date 28/10/2013 and had raised these two bills on “Provisional Basis: Actual Average” for 1 Kl each.  Complainant paid in all Rs.400/- against the said two bills (i.e., Rs. 200/- on 17/07/2013 towards bill with Bill Date 12/07/2013 and Rs.200/- towards bill with Bill Date 28/10/2013).  But thereafter the respondent raised a Provisional bill for the period 06/09/2013 to 02/06/2014 on average basis @ 22Kl for Rs.3,043/-  which had swollen with time to Rs.5,427/-.  It is pertinent to mention here that w.e.f. 01/01/2010 the respondent is governed by the Delhi Water & Sewer (Tariff and Metering) Regulations, 2012 with regard to the issues relating to water & sewer tariff and for metering and for matters connected therewith and incidental or ancilliary thereto. As per Regulation 13”Billing in case of non-functional water meter” in Sub-Clause (ii) of Clause (a) it is mentioned that if at the time of meter reading any private water meter is found to be out of order and consequently not registering the consumption, the average consumption of previous twelve months or less period as available on record shall be taken as the basis for billing.  The respondent has failed to show the basis on which it had raised the bill @22 Kl per month i.e., 197 Kl for 269 days.  In the absence of any basis for raising the bill @ 22kl per month, the raising of the bill at an assumed average of 22 Kl per month is irrational, hypothetical and arbitrary.  Since the complainant has placed on record the bills dated 08/05/2012, 03/02/2013, 12/03/2013 and 06/05/2013 for the period 18/02/2012 to 11/04/2013 which comes to 419 days i.e., more than 12 months with regular readings of total water consumption of 2Kl for 80 days, 13Kl for 87 days, 3Kl for 167 days & 1Kl for 84 days, as per the Regulation 13(a)(ii) we take the average consumption of previous twelve months from the said data available on record as the basis for billing on Provisional: Actual Average basis which comes to 1.38Kl per month  and not 1.1732Kl per month as asserted by the complainant instead of 22Kl per month.  The raising of the bill @ assumed average of 22 Kl per month has direct impact on the total billed amount as levy of other charges viz., sewerage charge, water cess, service charge, etc., are directly dependent on the water consumption charges so computed.  

 Further, it is pertinent to mention here that since the water meter in the present case is a private meter, as per the Regulations of 2012 the complainant was under an obligation to intimate the respondent about its non-functional status and to take steps for its replacement.  Though there is not an iota of evidence that the complainant ever informed the respondent about the non-functional status of the water meter but it is evident from the bills with Bill Dates 12/07/2013 and 28/10/2013 that the respondent was well aware of the fact that the status of the meter installed at the premises of the complainant against K.No. 0248130000 as on 24/06/2013 was showing NS i.e., No Status and the meter status as on 06/09/2013 was VMMT i.e., Vapoured/Moistured Meter.  The meter reader was duty bound to apprise the concerned ZRO that the said meter was non-functional after 11/04/2013 and the ZRO was under an obligation to issue notice to the complainant for the replacement of the meter.  Failure on the part of the respondent to issue a notice for the replacement of the water meter and raising a bill on Provisional Average Basis @ 22Kl for the period 06/09/2013 to 02/06/2014 after raising two bills with Bill Date 12/07/2013 for the period 11/04/2013 to 24/06/2013 and the bill with Bill Date 28/10/2013 for the period 24/06/2013 to 06/09/2013 @ 1Kl per month.  No reason has been given by the respondent for raising provisional bills at two different rates of average.          

In the case in hand, since the complainant has challenged the bill raised by the respondent relating to the period 06/09/2013 to 02/06/2014 only and has not raised objection with regard to the two bills raised for the periods 11/04/2013 to 24/06/2013 and 24/06/2013 to 06/09/2013.  It is significant to mention here that the total period for which the water meter remained non-functional was from 11/04/2013 to 06/07/2014 out of which two provisional bills not disputed by the complainant were raised @ 1Kl per month each for the period 11/04/2013 to 24/06/2013 and 24/06/2013 to 06/09/2013 and another provisional bill which is disputed  was raised by the respondent @22Kl per month for the period 06/09/2013 to 02/06/2014. In view of the submission of the complainant to apply the rate of 1.1732Kl per month (i.e., for the period 06/09/2013 to 02/06/2014) to a part of the period for which the meter remained non-functional and accepting the other two bills raised at the rate of 1KL per month each, disparity in application of rate for computing the provisional bills when there is no change in conditions, as the meter was non-functional in the period relating to all the three bills,  has neither been explained by the respondent nor can the complainant be allowed to avail different rates in same circumstances.  In this situation we arrive at an inference that all the three bills relating to the period 11/04/2013 to 02/06/2014 be struck down and the bill pertaining to the entire period of 11/04/2013 to 06/07/2014 be calculated at a uniform rate of 1.38 Kl per month in accordance with the Regulations of 2012.        

            With regard to the levy of Service Charge, it is pertinent to mention here that as per Regulation 9(g) contained in Chapter III of the said Regulations of 2012, it is a fixed monthly charge levied for maintaining the services in the locality as per the slab rates shown in Annexure-I of Schedule II to the said Regulations and it shall be payable in the lowest slab in the respective category even if no water is consumed during a billing cycle.  It is relevant to mention here that the respondent vide its Notification No.DJB/DOR/Tariff/2009/ Dated: 16.12.2009 with regard to the New Water Tariff in Delhi which was implemented with effect from 01/01/2010 had delinked the levy of service charge from the area concept (i.e., whether the covered area is more than or less than 200 Sq.mtrs – Service Charge for Domestic Category for built-up area upto 200 sq.m was Rs.40/- per month per connection and for built-up area above 200 sq.m was Rs.120/- per month per connection upto 31/12/2009) and with effect from 01/01/2010 levy of Service Charge was linked with the consumption slab for all category of consumers including the Domestic Category. From the above, there is not a scintilla of doubt that Service Charge is not a new charge, the only change is that its levy was delinked from area concept to consumption slab.  As such the allegation of the Complainant that the respondent has started a new charge under the name “Service Charge” without rendering any new service  is not tenable.

Raising bills arbitrarily in utter disregard of the Regulations of 2012 solely with the objective to escalate the revenue collection not only makes the bills totally illegal, hypothetical and arbitrary but amounts to malpractice on the part of the respondent that burdens the consumer with more payment than what is actually due from him.  In such circumstances, the bills issued by the respondent cannot be treated as valid and deserve to be struck down.  The respondent cannot charge the consumers arbitrarily; they are only entitled to charge with regard to the actual consumption made and provisionally on the basis of average of the consumption recorded during the last twelve months period or such lesser period as available on record when the meter was functional till the meter is replaced in cases of non-functional meter, meter box found locked, premises locked, etc.

            The allegations raised in the complaint and reaffirmed on oath in the affidavit by way of evidence by the complainant have not been controverted by the respondent.  It is a settled law that uncontroverted evidences cannot be disbelieved and there is no reason for us to disbelieve the evidence of complainant.  In view of the uncontroverted evidence of the complainant, the allegations made in the complaint shall be deemed to have been accepted by the respondent.

Taking into consideration the facts and circumstances mentioned above, the bill of Rs.3,043/- and the subsequent bill of Rs.5,427/- are cancelled.  We direct the respondent to raise a fresh bill for the period 11/04/2013 to 06/07/2014 i.e., for 453 days @1.38Kl. The respondent shall not charge any Late Payment Surcharge (LPSC)/penalty on the fresh bill so raised. The other charges viz., Water Volumetric consumption charge, Sewerage maintenance charge, Service charge, etc. may be levied accordingly as per the applicable slab rate with average consumption @1.38Kl.  Payments   made by the complainant against the K.No.0248130000 for any part of the the said period i.e., from 11/04/2013 to 06/07/2014 shall be adjusted against the demand so raised through the fresh bill and any payment made if found excess shall be refunded to the complainant.  In the case in hand, the complainant has been harassed by the issuance of arbitrary bills by the respondent and he needs to be compensated for it.  We direct the respondent to pay to the complainant Rs.10,000/- on account of harassment meted to him and this amount shall include the cost of litigation.  If the respondent fails to pay to the complainant the amount of compensation and cost as awarded above within 45 days from the date of this order, the complainant shall be entitled for interest @ 9% p.a. thereon from the date of this order till it is finally paid.

 

Copies of the order to be sent to the parties as per rules.

 

 

 

(Poonam Malhotra)                                                                                          (N.A.Zaidi)           Member                                                                                                       President