KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION  VAZHUTHACADU  THIRUVANANTHAPURAM

                              APPEAL  NO: 162/2007

                     JUDGMENT DATED. 31-07-2010

PRESENT

JUSTICE SHRI.K.R. UDAYABHANU               : PRESIDENT

SHRI. S. CHANDRAMOHAN NAIR                  : MEMBER

1.      Secretary, KSEB,

Vydhudhi Bhavan,

Pattom, Trivandrum.

2.      Deputy Chief Engineer,

Electrical Circle, Kollam.

                                                                   : APPELLANTS

3.      Assistant Executive Engineer,

Electrical Sub Division,

Sakthikulangara, Kollam.

4.      Assistant Engineer,

Electrical Section,

Sakthikulangara, Kollam.

(By Adv:Sri.S.Balachandran)

          Vs.

Jerome Fernandez,

T.5 Lake side Apartments,

Thoppilkadavu, Thevally,                          : RESPONDENT

Kollam.9.

(By Adv:Sri.Narayan.R)

                                         JUDGMENT

SHRI.S.CHANDRAMOHAN NAIR : MEMBER

This appeal is preferred against the order dated:25-01-2007 in OP.349/03 of the CDRF, Kollam.  By the impugned order the opposite parties are under directions to cancel the bill dated:22-05-2003 for Rs.19,131/- and to refund the sum of Rs.4883/- remitted by the complainant or to adjust the same in the future bills of the complainant.  The opposite parties are also directed to pay Rs.2000/- as compensation and Rs.1000/- as cost.  The Forum has given liberty to the opposite parties to recover the amount of compensation and costs from their delinquent employees. 

2. The complainant has approached the Forum stating that he is a consumer of the opposite parties having two electric connections, one for agricultural purpose and other for domestic purpose.  It is his case that on 22-05-2003, the 4th  opposite party issued a bill for Rs.19,131-/ to be remitted on or before 9-6-2003.  Though an appeal was preferred before the Deputy Chief Engineer, the 2^nd opposite party, the complainant was asked to remit 25% of the bill for hearing the appeal and he was forced to remit the sum of Rs.4,883/- on 11-7-2003.  The further case of the complainant is that the appeal was dismissed on the strength of the site mehazar prepared by the Assistant Engineer and that the complainant was not liable to pay any amount that was issued on him.  Alleging deficiency of service the complaint was filed praying for directions to cancel the bill and to refund the amount remitted by him.

3. Resisting the complaint the opposite parties filed version wherein it was contended that on 7-3-2003 the Assistant Engineer noticed misuse of energy by the complainant/consumer in Consumer No.7478 which was given towards agricultural purpose. The opposite parties submitted that the complainant was misusing energy for pumping water using 0.8KW Jet Pump to a tank for using the water for domestic purpose and that the complainant had an additional connected load of 6KW which was not permitted by the opposite parties.  The further submission of the opposite parties was that a site mehazar was prepared and finding that there was unauthorized connected load and misuse of energy, the bill for Rs.19,131/- was issued and the complainant is liable to pay the balance amount of Rs.14,348/- to the opposite parties.  Contending that there was no deficiency of service, the opposite parties prayed for dismissal of the complaint.

4. The evidence consisted of the oral testimony of the complainant as PW1 and Exts.P1 to P7.  On the side of the opposite parties DWs 1 and 2 were examined and Exts.D1 to D5 documents were marked.  The Forum below had appointed a Commissioner and his report was marked as Ext.C1.

5. Heard both sides.

6.  The learned counsel for the appellants vehemently argued before us that the order of the Forum below in canceling the bill issued by the opposite parties is per-se illegal and unsustainable.  It is his very case that it was subsequent to the detection of misuse and unauthorized connected load in the premises of the complainant that the penal bill was issued and the complainant ought to have remitted the same when the appeal to the 2^nd opposite party was also dismissed.  He has also submitted before us that the site mehazar had been properly proved and the Commissioner’s report could not be considered on the ground that the Commissioner visited the premises after filing the complaint and getting opportunity to the complainant to remove the unauthorized additional load taken by him and also avoiding the circumstances of pumping water for domestic purpose.  Advancing the above contentions the learned counsel for the appellants argued for allowing the appeal thereby setting aside the order of the Forum below.

7. On the other hand, the learned counsel for the respondent/complainant supported the findings and conclusions of the Forum below.  He has submitted before us that there was some collusion and some kind of vendenta for issuing the impugned bill.  The learned counsel advanced the contention that though the site mehazar was prepared on 7/3/2003, on 6-3-2003 also the 4^th opposite party had visited the premises of the complainant and if there was unauthorized additional load or misuse of energy he could have prepared the mehazer then and there.  It is also argued by him that the mehazar prepared was not genuine as it was only an after thought of the 3^rd and 4^th opposite parties that the site mehazer was prepared on the next day.  It is also his case that nobody from the side of the complainant had witnessed the site mehezar and no independent person had signed in the mehazar and the said mehazar can only be treated as a concocted document.  It is also his case that he had remitted an amount of Rs.4883/- only to get the appeal heard by the Deputy Engineer/2^nd opposite party and it did not mean that he was agreeable for payment of the amount of Rs.19.131/-.  Learned counsel further submitted that the application for regularization of connected load was given on a subsequent date for the reason that the complainant wanted some more appliances were also to be used in the premises.  Thus, it is argued by him that the appeal lacks merits and is liable to be dismissed.

8. On hearing for the learned counsel for the appellants and the respondent and also on perusing the records it is found that the opposite parties had issued the bill based on the site mehazar produced and marked as Ext.D1.  The said mehazar is seen prepared by the then Assistant Executive Engineer, Smt.Sreekala.  She had given evidence before the Forum as DW2.  She is also cross-examined by the complainant.  It is stated by her that there was inspection on 6/3/2003 also and they could understand that there was additional connected load and as they had to inspect so many premises, the site mehazar could be prepared only on 7/3/2003.  However nobody from the side of the complainant had witnessed the site mehazar and though one Chellayya  who was an employee of the complainant was present.  He did not sign in the site mehazar as he did not know how to sign.  We have perused the site mehazar prepared by DW2.  It is stated that there were certain machines connected in the premises of consumer No.7478 and that using the 0.85KW Jet pump, water was being pumped to a tank in the house of the complainant.  The said mehazar is proved by examining the scribe of the mehazar.  It is also noted that on finding additional load the opposite party has given a letter directing the complainant to regularize the additional load and the complainant has given application for regularizing the additional load.  We also find that the commissioner had visited the premises on 1/7/2003.  Though the learned counsel for the respondent would argue that the load in the premises of the complainant was 3.575KW,  we find that even at the time of inspection of the commissioner there was some additional load.  Learned counsel for the appellants argued before us that if there was no additional load there was no occasion for the complainant to give application for regularization of the additional load.  We find force in the said argument of the learned counsel and find that the complainant had unauthorized additional load in his premises and that he might have reduced or rather removed the additional appliances for bringing down the connected load to his expectation.  It is natural that when notice is received by the consumers for inspection by a commissioner, the consumers will get enough time to remove or reduce the connected load according to their desire.  The argument of the learned counsel for the respondent is that if there was additional load and misuse of energy on 6/3/2003 the mehazar would have been prepared on that day itself and the absence of preparation of site mehazar on the said date is conclusive proof that there was no additional load and issue of energy.  But the same cannot be countenanced in the facts and circumstances of the case.  Though the inspection was on 6/3/2003 the opposite parties are at liberty to prepare the site mehazar on 7/3/2003 and the explanation given by the scribe of the mehazar in preparing the site mehazar on 7/3/2003 is satisfactory.  In the said facts and circumstances we find that the opposite parties had issued the bill on detection of misuse of energy and unauthorized connected load in the premises of the complainant and hence the bill issued consequent to the said detection can only be supported.  It is seen that the Forum below had passed the impugned order without proper appreciation of the above  facts and circumstances and hence the order is only to be set aside.

In the result the appeal is allowed.  The impugned order dated:25/1/2007 in OP.349/03 of CDRF, Kollam is set aside.  However the opposite parties are directed to give facility to the complainant for the payment of Rs.14,348/- without interest and by giving suitable instalments.  In the facts and circumstances of the present appeal the parties are directed to suffer their respective costs.

S. CHANDRAMOHAN NAIR : MEMBER

JUSTICE K.R. UDAYABHANU: PRESIDENT

VL.