KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

                VAZHUTHACADU    THIRUVANANTHAPURAM

APPEAL  NO: 172/2006

                      JUDGMENT DATED:20..12..2010

PRESENT

SRI. M.V. VISWANATHAN                     : JUDICIAL MEMBER

SRI.M.K. ABDULLA SONA                      : MEMBER

The Assistant Engineer,

KSEB, Electrical Section Office,

Pampakuda, Piravam,                               : APPELLANT

Muvattupuzha.

(By Adv.Sri.B.Sakthidharan Nair)

          Vs.

George Joseph,

Apsara Wood Indutries,

Mannathoor post,                                      : RESPONDENT

Pampakuda, Ernakulam.

(By Adv.Sri.George Cheriyan Karippaparambil)

                                           JUDGMENT

SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER

Appellant was the opposite party and respondent was the complainant in OP.413/05 on the file of CDRF, Ernakulam.  The complaint therein was filed alleging deficiency of service on the part of the opposite party in issuing A4 and A7 short assessment bills.  The complainant alleged that the disputed short assessment bills were issued without any basis and without considering the meter readings recorded by the energy meter.  Thus, the complainant prayed for setting aside the impugned short assessment bills.

2.      The opposite party entered appearance and filed written version denying the alleged deficiency of service.  He contended that the impugned bills were issued based on average consumption of energy by invoking the provisions of clause 31 ( c ) of the Conditions of Supply of Electrical Energy.  Thus, the opposite party justified the action of KSEB in issuing A4 and A7 impugned short assessment bills.

3.      Before the Forum below the complainant was examined as PW1 and Exts.A1 to A7 documents were marked on the side of the complainant.  From the side of the opposite party Extsd.B1 to B5 documents were marked.  On an appreciation of the evidence on record, the Forum below passed the impugned order dated:9..11..2005 allowing the complaint and thereby the impugned short assessment bills (Ext.A4 and A7) were cancelled and that the opposite party was directed to assess the consumption of electrical energy on the basis of the readings recorded by the new meter installed at the premises.  Aggrieved by the said order, the present appeal is preferred.

4.      We heard both sides.  The learned counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He argued for the position that the impugned bills were issued by taking the average consumption of energy by the complainant/consumer and by invoking rule 31 ( c ) of the Conditions of Supply of Electrical Energy.  Thus, the appellant prayed for setting aside the impugned order passed by the Forum below and for dismissal of the complaint in OP.413/05.  On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below.  He pointed out the consumption of energy recorded by the energy meter installed at the premises and argued for the position that the impugned bills were issued without any basis and that Ext.A7 short assessment bill was issued based on the audit objection raised by the audit team of Accountant General.  Thus, the respondent prayed for dismissal of the present appeal.

5.      The points that arise for consideration are:-

1.                              Whether the appellant/opposite party can be justified in issuing Exts.A4 and A7 short assessment bills?

2.                              Whether the appellant/opposite party has followed the provisions of clause 31 ( c ) of the Conditions of Supply of  Electrical Energy while issuing A4 and A7 short assessment bills?

3.                              Is there any legally sustainable ground to interfere with the impugned order dated:9/11/2005 passed by the CDRF, Ernakulam in OP.413/05?

6.      Points 1 to 3:-

Admittedly, respondent/complainant has been consuming electrical energy for running the Saw Mill which stood in the name of Babu Philip.  It is the case of the respondent/complainant that he purchased the Saw Mill for earning his livelihood by running the said Saw Mill and that the said purchase was from the original consumer, Babu Philip.  It is to be noted that consumer number of the said Saw Mill is 387 and it is in the name of Babu Philip as consumer.  The opposite party, Assistant Engineer, KSEB has raised a contention that the complainant being a transferee of the said Saw Mill has not applied for getting the electricity connection to the said Saw Mill transferred in his name.  It is to be noted that the appellant/opposite party was fully aware of the fact that the respondent/complainant has been consuming electrical energy for running the Saw Mill.  But the appellant/opposite party has not taken any steps for violation of the provisions of clause 15 ( c ) of the Conditions of Supply of Electrical Energy.  It is to be noted that the respondent/complainant has categorically averred that he purchased the Saw Mill for running the same for earning his livelihood.  So, the complainant can be considered as a consumer coming within the ambit of the definition ‘consumer’ under section 2 (1)(d)(ii).  The available evidence on record would show that the respondent/complainant is entitled to the benefit of the explanation to section 2 (1) (d) of the Consumer Protection Act, 1986.  It is further to be noted that the respondent/complainant being the beneficiary of the services of the opposite party/KSEB with the approval of the original consumer Babu Philip can be treated as a consumer coming within the ambit of the Consumer Protection Act, 1986. Thus, in all respects, the Forum below can be justified in entertaining the complaint in OP.413/05 by treating the complainant therein as a consumer under sections 2 (1) (d)(ii) of the Consumer Protection Act, 1986.

7.      The complainant as PW1 has deposed in support of his case.  He categorically deposed that A4 short assessment bill dated:15/4/2005 for Rs.5,231/- and A7 short assessment bill dated:1/8/2005 for Rs.30,229/- were issued without any basis and issuance of those bills would amount to deficiency of service on the part of the appellant/opposite party (KSEB).  Ext.A4 bill for Rs.5,231/- was issued based on average consumption of energy.  As per Ext.A4 bill average consumption has been taken as 1000 units.  It is to be noted that in A4 bill it is stated that meter suspected faulty.  But there is no acceptable and reliable evidence to show that the meter was faulty.  Ext.B3 is photocopy of calibration certificate of energy meters issued by Assistant Executive Engineer, Meter Division, Angamaly.   In B3 certificate it is stated that the meter is faulty.  But B3 certificate

 Has not been proved by examining the person who issued the said certificate.  It is to be noted that nobody was examined from the side of the opposite party to prove the genuineness and correctness of B3 certificate.  B3 certificate would not show the period during which the aforesaid meter was faulty.  It is to be noted that B3 is dated 5/10/2005.  So, no reliance can be placed on B1 calibration certificate produced and marked from the side of the opposite party.

8.      The appellant/opposite party issued A4 bill for the month of March 2005 by taking the average consumption as 1000 units.  But there is nothing on record to show that the aforesaid average consumption at 100 units was taken based on any meter readings recorded by the energy meter.  It is further to be noted that A4 document itself would show that the meter suspected faulty.  The average consumption of 1000 units is not based on applying the provisions of clause 31 ( c) of the Conditions of Supply of Electrical Energy.  The available circumstances and materials on record would show that the average consumption of 100 units was taken without any basis.

9.      The appellant/opposite party relied on Ext.B1 spot billing register.  But the original of B1 spot billing register was not produced before the Forum below.  Nobody was also examined to prove the entries in B1 spot billing register.  The Forum below can be justified in not relying on Ext.B1 copy of spot billing register.  The person who made entries in the spot billing register or the custodian of the aforesaid spot billing register had not been examined before the Forum below.  So, the available circumstances would strengthen the case of the complainant that A4 bill was issued without any basis.  The case of the appellant/opposite party is that A4 bill for Rs.5,231/- was issued by invoking the provisions of clause 31 ( c) of Conditions of Supply of Electrical Energy.  There must be a declaration to the effect that the energy meter installed at the premises of the consumer has become faulty.  But there is nothing on record to show that the meter installed at the premised of the consumer was declared faulty.  Thus, in all respects Ext.A4 bill dated:15/4/2005 for Rs.5,231/- cannot be upheld and the same is liable to be cancelled.  The Forum below has rightly cancelled A4 bill.

10.    There is no dispute that the energy meter installed at the premises of the consumer No.387 became faulty in the month of April 2004 and the defective meter was replaced by a new meter only in September 2004.  Why there occurred delay of 5 months in replacing the defective meter by a new meter?  No reasonable explanation is forthcoming from the side of the appellant/opposite party for the said delay in replacing the defective meter.  It is the case of the appellant/opposite party that the meter which was replaced in September 2-004 became faulty during the same month.  But that meter was replaced by a new CT meter only on 8/7/2005.  There occurred a delay of about 10 months in replacing the defective meter.  It is contended that there was non availability of 3 phase meter and that is why there occurred delay of 10 months.  But no document is forthcoming to support the case of the opposite party that CT meter was not available during the aforesaid 10 months.  Thus, the aforesaid delay of 10 months can be treated as part of the deficiency of service on the part of the appellant/opposite party.

11.    Ext.A7 is the impugned short assessment bill dated:1/8/2005 for Rs.30,229/-.  A perusal of Ext.A7 short assessment bill would make it abundantly clear that the said bill was issued based on the audit report of the Accountant General.  It is to be noted that the opposite party/KSEB cannot be justified in simply issuing short assessment bill based on the audit report of the Accountant General.  It is for the KSEB to convince the consumer as to how the short assessment is calculated.  The opposite party has got a bounden duty to explain his action in issuing Ext.A7 short assessment bill.  But A7 short assessment bill would not give any indication regarding the mode or method adopted for issuing A7 short assessment bill.  It would only show that such a bill was issued based on the audit report of Accountant General.

12.    Appellant/opposite party much relied on Ext.B2 audit enquiry No.18.  It is to be noted that B2 is copy of the audit report issued by the audit officer.  But the original of B2 is not available for scrutiny.  Nobody has been examined before the Forum below to prove the entries in B2 audit report.  No evidence is forthcoming to substantiate the entries in B2 audit report.  So, the Forum below can be justified in not relying on B2 audit report.

13.    The appellant/opposite party has got a case that A7 impugned short assessment bill was issued based on Rule 31 ( c) of the Conditions of Supply of Electrical Energy.  It is the case of the appellant/opposite party that the average consumption for the months of January, February and March 2004 had been taken for arriving at the average consumption.  But there is no reliable evidence on record to show the average consumption of energy during the months of January, February and March 2004.  As per B2 audit report the consumption of energy during the aforesaid 3 months is shown as 1054, 1305 and 1397.  But the actual consumption during the said months had not been proved by adducing cogent evidence.  The original of the meter reading register had not been produced before the Forum below.  More over, there is nothing on record to show that the meter was faulty from October 2004 onwards.  There is also no cogent and acceptable evidence to prove the faulty nature of the energy meter installed at the premises of the consumer bearing No.387.  It is also to be noted that the energy meter was only suspected to be faulty.  There is no reliable evidence to show that the meter was faulty during the said period.  The respondent/complainant has got a case that during the said period he consumed less energy because there was no work at his Sawmill.  The meter readings recorded by the energy meter during September, October, November and December are recorded in B1 spot billing register.  The case of the appellant/opposite party that those readings were not correct readings because of the faulty nature of the energy meter cannot be accepted as such.  There is nothing on record to show that the said  meter was declared faulty and the opposite party/KSEB invoked the provisions of clause 31 ( c) of the Conditions of Supply of Electrical Energy.  Thus, the average consumption taken by the appellant/opposite party cannot be accepted as such.

14.    The Forum below has only directed the appellant/opposite party, KSEB to assess the consumption of energy by the consumer by taking the readings recorded by the new meter installed at the premises of the consumer.   No prejudice or harm will be caused to the consumer and the service provider (KSEB) by adopting such a method.  It is to be noted that there is also provision to take the readings for the subsequent period also, for assessing the average consumption.  Thus, the direction given by the Forum below to adopt the readings recorded by the new meter can be treated as the method recognized by clause 31 ( c) of the Conditions of Supply of Electrical Energy.  So, the impugned order passed by the Forum below is to be upheld.  No substantial prejudice or inconvenience will be caused to the appellant/opposite party or the consumer by the impugned order passed by the Forum below in OP.413/05.

15.    Thus, we have no hesitation to uphold the impugned order passed by the Forum below and to dismiss the present appeal.  Hence we do so.  These points are answered accordingly.

In the result the appeal is dismissed.  The impugned order dated:9/11/2005 passed by the CDRF, Ernakulam in OP.413/05 is confirmed.  The parties are directed to suffer their respective costs throughout.

M.V. VISWANATHAN           : JUDICIAL MEMBER

M.K. ABDULLA SONA : MEMBER

VL.