KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL 486/2004 JUDGMENT DATED 5.10.09 Appeal filed against the order passed by CDRF,Kottayam in OP.251/03 PRESENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER SRI.M.K.ABDULLA SONAL : MEMBER 1. The Secretary, : APPELLANTS K.S.E.B., Pattom, Thiruvananthapuram. 2. The Asst.Engineer, Electrical Section, Ayarkunnam. 3. The Asst.Ex.Engineer, K.S.E.B., Ayarkunnam. (By Adv.B.Sakthidharan Nair) vs. K.J.Joseph, : RESPONDENT Proprietor, Universal Building Products, Kizhakkedathukunnel, Ayarkunnam.P.O., Kottayam. (Bt Adv.R.Lekshmanan Iyer) JUDGMENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The above appeal is directed against order dated 31st May 2004 of the CDRF, Kottayam in OP.251/03. The complaint therein was filed by the respondent herein against the appellants as opposite parties to get the A1 demand notice for Rs.30519/- cancelled. The complainant alleged the deficiency in service on the part of the opposite parties in issuing the impugned demand notice. The opposite parties entered appearance and contended that the impugned demand notice was issued based on the inspection conducted by the Anti Power Theft Squad on 4.2.2003 and that in the said inspection unauthorized connected load of 15KW was detected and that one phase of the three phase meter was not recording the actual consumption of energy. Thus, the opposite parties justified their action in issuing A1 demand notice for Rs.30519/-. 2. Before the Forum below A1 to A5 and B1 to B7 documents were produced and marked. The complainant has also filed affidavit in lieu of examination in chief. The 3rd opposite party Asst.Executive Engineer and the Sub engineer who prepared B1 site mahasar have also filed proof affidavit in lieu of examination in chief. On an appreciation of the evidence on record, the Forum below was of the view that the demand for Rs.20670/- being the energy charges for 6 months cannot be sustained and that the demand for unauthorized connected load has been reduced and there by the unauthorized connected load has been taken as 6 KW instead of 15KWs. The opposite parties/KSEB was given the right and liberty to issue penal bill for unauthorized connected load of 6 KW. Thereby the A1 demand notice for Rs.30519/- was cancelled. Aggrieved by the said order, the present appeal is filed by the opposite parties therein. 3. We heard both sides. The learned counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on Ext.B1 site mahasar and Proof affidavit filed by the Sub Engineer who prepared B1 site mahasar. He argued for the position that there was no recording of one phase of the energy meter and thereby the complainant/consumer has not been charged for the entire energy consumed by him. He also relied on the very same site mahasar to canvass the position that there was unauthorized connected load of 15 KW. Thus, the appellants requested for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the forum below. He argued for the position that the demand for Rs.20670/- was made without any basis and so the opposite party/KSEB cannot be justified in insisting for such payment towards the energy charges. He also relied on the completion certificate which was produced by the complainant at the time of submitting the application for enhancing connected load. He made reference to the affidavit filed by the complainant to that effect. The learned counsel for the respondent/complainant has also relied on B1 site mahasar and submitted that there was nothing in the site mahasar to substantiate the contention of the opposite parties that there was a welding set having 12.75KW. It is submitted by the counsel for the respondent that no label was found on the said welding set and there is no mention of the same in B1 site mahasar. The respondent requested for dismissal of the present appeal. 4. The points that arise for consideration are:- 1) Whether the appellants/opposite parties can be justified in demanding a sum of Rs.20670/- by way of energy charges for consumption of energy for the period from 8/02 to 1/03? 2) Whether the appellants/opposite parties can be justified in fixing unauthorized connected load at 15KW and issuing the penal bill under caluse 42(d) of the Conditions of supply of electrical energy? 3) Is there any sustainable ground to interfere with the impugned order dated 31.5.04 passed by CDRF, Kottayam in OP.No.251/03? 5. Points 1 to 3:- There is no dispute that the APTS of the KSEB conducted an inspection on the premises of the complainant/consumer on 4.2.03 and on inspection it was detected that one phase of the power meter was not recording the actual consumption of energy. Ext.B1 is the site mahasar prepared by the then Sub Engineer who was in charge of the Asst.Engineer, Electrical Section, Ayarkunnam. Ext.B2 letter issued by the Deputy Chief Engineer, Electrical Circle, Kottayam would also reveal the fact that such an inspection was conducted by APTS and mahasar was prepared at their instance in the handwriting of the sub Engineer, KSEB, Ayarkunnam. It is to be noted that C.K.Augstine, sub Engineer of the Electrical Section, Ayarkunnam has also filed affidavit in support of the case of the opposite parties. There is no sustainable reason or ground to doubt the case of the opposite parties regarding inspection conducted by the APTS on 4.2.03 and the fact that one phase of the power meter was not recording in the consumption. It is to be noted that the complainant has not disputed the aforesaid fact that it based of the power meter was not recording but the date of inspection of the premises by the Anti Power Theft Squad. It is categorically stated in Ext.B1 site mahasar that copper oxide( ) deposited at the terminal point and it resulted in the failure to record consumption by the power meter. There is no doubt about the fact that Electrical power to all the three phases of the power meter should equally distributed. If that be so, the non-recording of the consumption can very easily be detected and assessed. The opposite party/KSEB has rightly assessed and ascertained the non recording of consumption by one pahse of the power meter. 6. The opposite party/KSEB has taken this non recording of consumption for a period of 6 months; but in fact there is nothing on record to show that this phenomenon of deposit of copper oxide and the resultant non-recording of the consumption of energy had continued for a period of 6 months. The mahasar and the affidavit filed would only show that on the date of inspection (4.2.03) one phase of the energy meter was not recording the consumption. In such a situation it is rather impossible for the parties to come to a definite conclusion regarding the period of non recording of the consumption of energy. So, some guess work is to be done in fixing liability on the complainant/consumer. One thing is sure and certain that the respondent/complainant being the consumer is bound to pay the energy charges for the electrical energy he actually consumed. He has also got moral obligation to pay the energy charges for the energy actually consumed. Considering all these aspects, it can be concluded that there was non recording of one phase of the power meter for a period of 2 months. So, the complainant can be made liable to pay 1/3 of the aforesaid sum of Rs.20670/-. It means that the complainant/consumer is bound to pay Rs.6890/- to the opposite party/KSEB for the energy which was short assessed. The Forum below cannot be justified in totally absolving the complainant/consumer from the liability to pay the energy charges for the energy he actually consumed. The impugned order passed by the Forum below on that point is modified to that effect. 7. The appellants/opposite parties have also demanded energy charges for the unauthorized connected load of 15KWs. The aforesaid demand was made on the basis of clause 42(d) of the Conditions of Supply of he Electrical Energy. Ext.B7 is copy of the service connection register. It was produced along with an affidavit and the original of the register. Ext.B7 register would show that the permitted connected load was only 30KW. Ext.B1 site mahasar would show that there wan an unauthorized connected load of 15KW on the date of inspection of the premises by the APTS. But the Forum below was of the view that there was only an unauthorized connected load of 6KW. The aforesaid conclusion was based on the submission made by the complainant. But, there is no acceptable or reasonable ground to doubt the correctness of the contents of B1 site mahasar. Another pertinent aspect to be noted at this juncture is the subsequent enhancement of the connected load of the complainant to 72 KWs. This would give an indication that the complainant/consumer was in need of enhanced connected load. This circumstance would also strengthen the case of the opposite parties that there was unauthorized connected load of 15KW on the date of the site inspection by APTS. The finding of the Forum below that the unauthorized connected load was only at 6KW cannot be upheld. The impugned order passed by the Forum below on that aspect is also modified and thereby the unauthorized connected load has been taken as 15 KW. If that be so, the respondent/complainant being the consumer is bound to pay Rs.8100/- by way of penal charge under clause 42(d) of the Conditions of Supply of Electrical Energy. 8. The forgoing discussions and the findings thereon would make it clear that the complainant/consumer is liable to pay Rs.6819/- by way of energy charges for the period of 2 months during which period there was non-recording of one phase of the power meter. Likewise the complainant being the consumer is also liable to pay Rs.8100/- by way of penal charges for the unauthorized connected load of 15KW. The total amount would come to Rs.14990/- +10% by way of duty on the sum of Rs.6890/-. If that be so, the total amount due to the opposite party/KSEB can be taken as Rs.15679/-. It is the admitted fact that the complainant/consumer has already remitted the entire amount of Rs.30519/-. Then, the balance amount due to the complainant by way of excess amount remitted would come to Rs.14840/-. The complainant is entitled to get the aforesaid sum of Rs.14840/- adjusted in the future energy bills with interest at the rate of 24% per annum. It is the admitted fact that the opposite party/KSEB is in the habit of collecting interest at the rate of 24% in case of default in making payment of the energy charges. If that be so, the opposite party is also liable to pay interest on the said sum of Rs.14840/- at the rate of 24% per annum from the date of remittance of the A1 bill amount. The impugned order passed by the Forum below is modified accordingly. In the result the appeal is allowed to the extent as indicated above. The impugned order dated 31.5.2004 passed by the CDRF, Kottayam in OP No.251/03 is modified. Thereby the actual total amount due from the complainant to the opposite party/KSEB is fixed at Rs.15679/-. The complainant is already remitted the A1 bill amount of Rs.30519/-. The balance amount due to the complainant by way of excess payment would come to Rs.14840/-. The opposite party/KSEB is directed to refund or adjust the said amount with interest at the rate of 24% per annum from the date of payment of the A1 bill amount. The parties are directed to suffer their respective costs through out. SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER SRI.M.K.ABDULLA SONAL : MEMBER ps
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