BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENA KUMARI .A : MEMBER
SMT. S.K. SREELA : MEMBER
C.C.No. 44/2007 Filed on 13/02/2007
Dated: 31..01..2011
Complainant:
Robertson Titus, (71 yrs.), T.C. No. 8/150, Thirumala, Thiruvananthapuram – 695 006.
(By Adv. R. Radhakrishnan Nair)
Opposite party:
Electrical Assistant Engineer, K.S.E.B Sub Division, Thirumala, Thiruvananthapuram – 6.
(By Adv. S. Balachandran)
This O.P having been heard on 31..12..2010, the Forum on 31..01..2011 delivered the following:
ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that, complainant is a consumer of the opposite party vide consumer No.4511014253, that complainant availed electrical connection in his three storeyed building, that initially he constructed the ground floor and first floor at a stretch, that ground floor has been rented out to Thriveni Store and first floor has been rented out to the Office of Telecom Centre respectively and opposite party has provided electric supply to the said floors on non-domestic tariff, that complainant constructed the second floor subsequently wherein opposite party has provided electrical connection in the aforesaid consumer Number under LT1(A), that complainant rented one half portion of the said second floor to one Karunakaran Asasi and the other potion has been rented out to one Radhakanth, that the complainant was paying current charges in domestic tariff ever since the construction of the second floor from 26/9/2005 onwards till the bill dated 24/11/2006, that when complainant went to opposite party's Office for remitting the current charge on domestic tariff, the Cashier modified the amount of the bill to Rs. 9911/- stating that tariff has been changed to commercial tariff under LT VII A, that complainant could not make the remittance since current charge was enhanced more than double of the usual charge, that on 14/12/2006 complainant made a complaint to opposite party about the illegal change of tariff, that opposite party asked the complainant to remit the current charge of Rs. 9911/- as modified and the excess payment, if any, can be adjusted in subsequent bills, that accordingly complainant paid the bill for a sum of Rs. 9911/-. It is submitted by the complainant that opposite party has not taken any action to re-instate the domestic tariff under LT 1(A) so far, that opposite party served another bill on 01/12/2007 for a sum of Rs. 1,141/-, that complainant paid the said bill in order to avoid disconnection, complainant got a reply from the opposite party stating that complaint is rejected. It is further submitted by the complainant that opposite party did not comply any of the formalities for changing the tariff from domestic to commercial. Hence this complaint to direct opposite party to effect conversion of tariff from commercial to LT 1(A), to refund the excess amount paid by the complainant under commercial tariff and pay compensation and cost to the complainant.
2. Opposite party filed version contending inter alia that the complaint is not at all maintainable either in law or on facts, that the second floor has rented out for domestic purpose, that the complainant is using the second floor as a lodge, that there are more than 10 rooms and all of them are opening to a common corridor, that on 28/12/2006 opposite party conducted an inspection and prepared a mahazar stating that the above floor is using as a lodge. Hence after issuance of notice the tariff was changed from LT 1 A to LT VII A, that on 8/5/2008 opposite party conducted a site inspection and prepared a mahazar, that complainant is using the said floor for lodging purpose and it will come to tariff under LT VII A, that complainant is liable to pay energy charges under LT VII A tariff, that complainant never used the building for residential purpose nor Radhakanth or Karunakaran Asari used the said floor for domestic purpose. Hence opposite party prayed for dismissal of the complaint.
The points that arise for consideration are:
Whether complainant is entitled to restoration of tariff under LT 1A?
Whether there is deficiency in service on the part of the opposite party?
Whether complainant is entitled for refund of excess amount paid under LT VII A?
Whether complainant is entitled to get compensation and cost?
In support of the complaint, complainant has filed affidavit and has marked Exts. P1 to P6. In rebuttal, opposite party has not filed affidavit. Opposite party has furnished two documents which are in the records.
4. Points (i) to (iv): There is no point in dispute that connection to consumer No. 4511014253 was given in the second floor of the three storeyed building. There is no point in dispute that opposite party has provided the electric supply to ground floor and first floor on non-domestic tariff. It has been the case of the complainant that the second floor of the said building is a subsequent construction, and the said floor has constructed for residential purpose. It has also been the case of the complainant that one half portion of the second floor has been rented out to one Karunakaran Asari and the other portion of the same floor has been rented out to the family of Radhakanth. Ext. P1 is the document dated 11/11/2005 evidencing the Tenancy – Lease of the building with T.C.No. 8/150(1) Eastern Part – on the monthly rent of Rs. 3,000/- in favour of Karunakaran Asari. It is stated in Ext. P1 that the Eastern part of the said building comprises 3 rooms and kitchen and the said portion taken on rent for residential purpose. Ext. P2 is the document dated 6/1/2006 evidencing the Tenancy – Lease of building, T.C.No. 8/150 (1) Western part. As per Ext. P2 a portion of the said floor was taken on lease by Radhakanth on monthly rent of Rs. 3,700/- including current and water charges. As per Ext. P2 the said portion of the floor was taken by him for residential purpose. Opposite party raised objection while marking the said documents. Ext. P3 is the notice dated 24/11/2006 issued by opposite party to consumer No. 4511014253 under LT VII A tariff for Rs. 9911/-. Ext. P4 is the notice dated 29/9/2006 for Rs. 3,724/- issued to consumer No. 4511014253 under LT 1A. Ext. P5 is the Property Tax Assessment Index Sheet issued by Revenue Department, Corporation of Thiruvananthapuram on 22/9/2005. On perusal of Ext. P5 it is seen that the proposed T.C.No. is T.C.8/150(1). It is seen stated in the description of the building:
GF – Existing – Commercial – Thriveni
FF – Existing - Commercial – Telecom & Lodge
SF – Drawing, Bed (4) Dining, kitchen
Date of completion 5/9/2005.
Ext. P6 is the notice dated 25/1/2007 issued under LT VII A to consumer No. 4511014253. Complainant has been cross examined by opposite party. In his cross examination by the opposite party on being asked as to whether Exts. P1 & P2 are bilateral agreement, complainant has deposed that they are consent letters, which can be stated as rent deed. Further complainant has admitted in cross that in the disputed floor there are 8 rooms situated, on either side of corridor. He has further admitted in the cross that still Mr. Radhakanth & Karunakaran Asari and their workers are residing therein. He has further added that in the disputed floor the persons residing are workers of Contractor Karunakaran Asari but he did not know the name of the persons residing therein. He has admitted in his cross examination that he gets rent from two persons of Rs. 3,700/- and Rs. 3,000/-. He denied the suggestion putforth by the opposite party that an inspection was done by the opposite party in his building. He has submitted further that opposite party has not issued any notice of inspection to him. Asked about the mahazar prepared by Assistant Engineer, complainant said he did not know it and nor did opposite party inform him about the alleged inspection. He has added further that the persons residing therein never informed him about the alleged inspection done by opposite party. In his cross examination complainant denied the suggestion put by the opposite party that the second floor was given for lodging purpose and deposed further that the said floor was given for residential purpose. Complainant has further added that no lodging business can be run there as no Offices were there in the said area. In his re-examination he has deposed that after filing this complaint Mr. Karunakaran Asari has left the premises. Per contra, opposite party has never filed affidavit to substantiate the contention in the version nor has opposite party examined any witnesses in their favour. Opposite party has produced 2 documents which are in the records, one document is a site mahazar dated 28/12/2006. A perusal of the said site mahazar reveals that the mahazar was prepared in the absence of the consumer or his authorised persons residing there in the disputed building. Opposite party has not made any attempt to examine the Assistant Engineer, who had prepared such a mahazar. It is to be noted that a mahazar has to be prepared in the presence of the parties or their agents against whom the bill was issued. Nowhere in the said mahazar the names of the parties residing therein are seen mentioned. No other witnesses are seen present at the time of inspection as per the mahazar report dated 28/12/2006. It appears from the said mahazar report that the said mahazar was prepared without serving any notice to the parties concerned. It may cast doubt over the authenticity of the said mahazar report. Another site mahazar dated 8/5/2008 prepared by Assistant Engineer is in the records. In the said site mahazar it is seen mentioned that the mahazar was prepared in the presence of Assistant Executive Engineer, but nowhere in it is it seen the name of the Assistant Engineer or his signature. Though in the said site mahazar the name of some of the persons residing there in the disputed floors have been mentioned, it is not clear whether the said mahazar was prepared in the presence of the persons residing there in the disputed floor. Names of witnesses or their signatures are not seen in the said mahazar. Opposite party has not made any attempt to examine the said Assistant Executive Engineer or the persons stated there in the mahazar, nor has opposite party filed affidavit to corroborate the contention in the version or the contention in the mahazar report. The onus lies on the opposite party to prove the genuiness of the said mahazar reports. The burden is on the part of the opposite party to show that the disputed floor has been used for non-domestic purpose. Opposite party failed to do so. By Ext. P5 Property Tax Assessment Index Sheet issued by Thiruvananthapuram Corporation, it is seen that the second floor is meant for residential purpose. Whether the said floor has been used for commercial purpose is yet to be established by the opposite party with a cogent and clinching evidence. In the absence of evidence in favour of opposite party we are of the view that the conversion of tariff from LT 1A to LT VII A is unilateral and without complying any formalities stipulated in the conditions of Supply of Electrical Energy. Opposite party is duty bound to convince the consumer that tariff has been converted from LT 1A to LT VII A as situations permitted. It is further to be noted that as per Ext. P4 the bill was issued under LT 1A. Opposite party has to establish the circumstances which warranted to issue a bill under LT VII A. Variation of the meter readings alone cannot be the base for conversion of tariff from LT 1A to LT VII A. Opposite party never issued any notice prior to conversion of tariff from LT 1A to LT VII A. Meter reader has not been examined by the opposite party. In view of the foregoing discussions and evidence available on records we are of the view that the conversion of tariff was unilateral and against the principles of natural justice. Further the Ext. P5 Property Tax Assessment Index Sheet issued by Thiruvananthapuram Corporation has already revealed that ground floor and first floor of the said building are for commercial purpose and Lodge whereas the second floor of the same building for residential purpose. Admittedly, opposite party had provided electric connection to ground and 1st floor under non-domestic category and to subsequent second floor under LT 1(A). The reason for conversion of tariff from LT1(A) to LT VII A has not been established by the opposite party. In view of the above we are of the considered opinion that complainant is entitled to get restoration of tariff under LT 1A. Complainant is also entitled for refund of excess amount remitted under LT VII A.
In the result, complaint is allowed. Opposite party shall convert tariff from LT VII A to LT 1A to consumer No. 4511014253 and shall refund the excess amount collected under LT VII A or adjust the same in future bills, within one month from the date of receipt of this Order. There will be no compensation in facts and circumstance of the case. Parties shall bear and suffer their respective costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 31st day of January, 2011.
G. SIVAPRASAD,
PRESIDENT.
BEENA KUMARI .A,
MEMBER.
S.K. SREELA,
MEMBER .
ad.
C.C.No: 44/2007
APPENDIX
I. Complainant's witness:
PW1 : Robertson Titus
II. Complainant's documents:
P1 : The document dated 11/11/2005 evidencing Tenancy-Lease of the building
P2 : The document dated 6/1/2006 evidencing the Tenancy-Lease of building
P3 : Copy of the notice dated 24/11/2006 issued by opposite party.
P4 : The notice dated 29/9/2006 for Rs.3,724/-.
P5 : Copy of the Property Tax Assessment Index Sheet dated 22/9/2005.
P6 : Copy of the notice dated 25/1/2007
III. Opposite party's witness : NIL
IV. Opposite paty's documents : NIL
PRESIDENT
