a KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO:565/2005 JUDGMENT DATED.1.3.2008 PRESENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI. S. CHANDRAMOHAN NAIR : MEMBER 1.The Secretary, KeralaState Electricity Board, Vaidyuthi Bhavan, Pattom, Thiruvananthapuram. 2.The Executive Engineer, Electrical Division East, : APPELLANTS Power House, Thiruvananthapuram. 3.The Assistant Executive Engineer, Electrical Major Section, Manacaud, Thiruvananthapuram-9. (By Adv: Sri.B.Sakthiharan Nair) V. K.M. Althaf, T.C.No:43/569, Rifavilla, : RESPONDENT Kamaleswaram, Manacaud.P.O, Thiruvananthapuram. (By Adv: Sri.N.Balakrishnan Nair) JUDGMENT SHRI.S. CHANDRAMOHAN NAIR : MEMBER The opposite parties in OP:1/03 before the CDRF, Thiruvananthapuram have come up in appeal assailing the order dated:31..3..2005 wherein and whereby the opposite parties are directed to repay Rs.3595/- to the complainant within 2 months from the date of order failing which the said amount will carry interest at the rate of 9% till the date of payment. 2.The case of the complainant bereft of unnecessary details in the complaint is that he is a consumer of the opposite parties and that he has taken the electricity connection as single phase and on 30..1..1997 he requested to convert the same to 3 phase. As the complainant noticed that the meter was defective he made a further request to the 3rd opposite party to replace the same and on 5..5..2000 the meter was replaced. But that was also defective and it was replaced on 16..5..2000. The complainant alleges that he had been paying electricity charges based on a defective meter and as the meter was replaced he is liable to pay charges based on the average consumption recorded by the new meter. He made a request for the refund of the excess amount remitted by him and as the opposite party denied the claim of the complainant the present complaint was filed praying for directions to refund the excess charges collected from him and to repay the additional security deposit of Rs.1,100/- along with compensation and cost. 3.On receipt of the notice from the forum below the 3rd opposite party filed a version for himself and for the other opposite parties. It was admitted that the meter was replaced twice on 5..5..2000 and 16..5..2000 due to defect in the meters and it was contended that on 12..10..2001 the Assistant Executive Engineer (3rd opposite party) conducted on inspection of the premises of the complainant and on taking the meter readings it was found that the complainant had an average consumption of 8.46 units per day. It was also contended that as the previous average consumption calculated for issuing the bills was 8.37 units, there was not much difference in the consumption pattern and the opposite parties were not liable to refund the excess collected by them as alleged by the complainant. The opposite parties submitted that there was no deficiency of service and the prayers of the complainant are not tenable and are only to be rejected. Hence a prayer for the dismissal of the complaint was made by them. 4.Evidence consists of the affidavits of both parties. The complainant produced 7 documents which were marked as P1 to P7. There was no documentary evidence on the side of the opposite parties. Based on the affidavits and documents, the forum below passed the impugned order fastening the liability on the opposite parties to pay back Rs.3595/- which was shown in the annexure produced by the complainant towards the calculation of the excess amount collected from him. 5.We heard the counsel for the appellant and respondent.P 6.The counsel for the appellant argued before us based on the contentions raised in the version filed below and on the grounds urged in the Memorandum of appeal. He also relied on clause 31 (c ) of the Conditions of Supply of Electrical Energy and the decision of the Hon”ble Supreme Court reported in AIR 1997 (SC) 2793 (Belwall Spinning Mills Ltd. Vs. U.P.State Electricity Board and Another). 7.It is the very case of the appellant that the average consumption subsequent to the changing of the meter on 16..5..2000 is 8.46 units per day as per the inspection of the premises conducted by the 3rd opposite party and the previous consumption during the alleged faulty period was 8.37 units per day. There was not much difference in the consumption pattern and the opposite parties were not liable to refund any amount towards the faulty meter period. It was also argued that only 8.37 units per day was taken as the basis for issuing the disputed bills, whereas the average consumption per day after replacement was 8.46 units and in such a situation the complainant was liable to pay some more amounts to the opposite parties. He also advanced the contention that U/S26/6 of the Indian Electricity Act 1910 the electrical inspector is the competent authority to calculate/estimate the energy charges during the faulty period and that too only for 6 months and beyond that 6 months, the register of the meter shall be final and conclusive irrespective of the fact that the meter was faulty or not. He invited our attention to the decision of the Hon’ble Supreme Court wherein the said position has been held by Hon’ble Supreme Court. The decision of this Hon’ble Commission was cited by him to show that estimation of supply of energy during the faulty period can be decided by the electrical inspector and in the instant case no such estimation was made by the electrical inspector. He also advanced the contention that clause 31(c) would clearly indicate that consumption during the faulty period can be assessed by taking the average consumption for the previous 3 months. The calculation particulars for arriving at Rs.3595/- relied by the forum below is also vehemently attacked by the learned counsel. 8.On the other hand, the learned counsel for the respondent supported the findings of the forum below and prayed for the dismissal of the appeal contending that no documents were produced by the opposite parties to substantiate the claim that the average consumption on inspection of the premises by the 3rd opposite party was 8.46 units. According to the learned counsel for the respondent the average consumption was 6.49 units per day after replacement and the forum below has rightly accepted the same based on the records produced by the complainant. It was also submitted that the complaint was only with respect to the average consumption which was the basis for the issue of the bills during the faulty period and in such a situation the contention of the learned counsel for the appellant regarding finding of the electrical inspector holds no ground. There is no case for both the parties that the meter was working and it was replaced for other reasons. The opposite parties themselves had admitted the fact that the meter was faulty and the meters were replaced twice on 5..5..2000 and 16..5..2000. The dispute is only with regard to the average consumption recorded in the replaced meter and in such a situation the learned counsel for the appellant argued that the appeal is devoid of merits and is only to be dismissed. 9.We find that the opposite parties have a case regarding the average consumption that it was 8.46 units per day. Unfortunately there is nothing on evidence to show that the average consumption was 8.46 units, where as the complainant produced the photocopy of the electricity meter card (Ext.P7) before the forum to prove that the average consumption was 6.49 units per day. However the opposite parties have raised the contention that the average consumption is 8.46 per day in the version and in the affidavit filed by them. In the appellate stage also the learned counsel for the appellant raised the contention that they were not given opportunity to adduce evidence with regard to their claim that the average consumption was 8.46 per day. We feel that without any material the opposite parties would not have raised such a contention and they should be given an opportunity to adduce evidence, if any, in support of their contention. Moreover how the amount of Rs.3595/- has been arrived at is not clear from the annexure produced by the complainant. Hence, the request made by the appellant’s counsel has some force and the matter is remitted to the lower forum for adducing fresh evidence by the opposite parties to substantiate their claims. With regard to the computation of Rs.3595/- both the parties are at liberty to prove their rival contentions by giving cogent reasons. 10.In the result this appeal is allowed, setting aside the order dated:31..3..2005 in OP:1/2003 of the CDRF, Thiruvananthapuram and the matter is remitted back to the lower forum for disposal of the case denovo after giving opportunity to both parties to establish their rival contentions by adducing evidence, if any. In the nature and circumstances of the case the parties are directed to suffer their respective cost in the present appeal. S. CHANDRAMOHAN NAIR : MEMBER M.V. VISWANATHAN : JUDICIAL MEMBER VL. | 
