D.O.F. 07.08.2009
D.O.O. 16.08.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D.Jessy : Member
Dated this the 16th day of August, 2011.
C.C.No.208/2009
Dr. E.D. Joseph,
S/o. Devassya,
Clinical Psychologist, : Complainant
‘Sadgamaya’,
P.O. Pallikkunnu, Kannur
(Rep. by MK Associates)
1. Kerala Water Authority, Water works,
PH Division, Kannur.
(Rep. by Adv. S.J. Abraham)
2. Kerala Water Authority, : Opposite Parties
Represented by its Managing Director,
Jalabhavan, Thiruvananthapuram.
O R D E R
Smt. K.P. Preethakumari, Member.
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to cancel the bill dated 16.06.2009 for ` 24,481/- as it is void and to pay ` 5,000 as compensation.
The complainant’s case is that he is the consumer of opposite parties having No: P2H/1287/D for domestic use for his family having three members and have his own well with plenty of water. The complainant is punctual in remitting water charge in accordance with consumption recorded from time to time without any default and often used to remit the monthly sum in advance. On 25.03.2009 he has paid the amount in advance till February, 2010. He was given a premise invoice card to record a periodical payment based on the meter record. The regulation and rules in force from time to time regarding the accounting of consumers water consumption stipulates that periodical inspection conducted by meter inspector shall be duly recorded and the payment shall be demanded by issuing adjustment bills every six months in case the actual amount is not ascertained every month. It is the duty of the opposite party to see that proper service are given or ensured to the customers not only in the matter of providing uninterrupted supply of water but also to see that proper follow up is made in the matter of collection, levy etc of charges from consumer. The opposite party did not issue any adjusted bill nor did they recorded the meter reading in the premise card or the complainants provisional card for the last several years and were no arrears till the end of May, 2009. The complainant is having alternative water source. He uses only a bare minimum quantity of water. The opposite parties are aware that the average consumption of the complainant is within the limit of amount monthly remitted on 23.06.2009, the complainant was served with a bill dated 16.06.2009 requiring to pay 24,481 allegedly the arrears due from 2004 till, April, 2009. The said bill was prepared on the basis that the complainant has struck 70.3 KL water as the average consumption per month. The opposite party had kept the matter quietly for a long period of five years and wilfully caused it in dormant state. The intention of opposite party is to get undue enrichment for them to charge at higher tariff for the entire quality spread over to five years. The opposite parties are guilty of wilfull negligence in the matter of performing their duty and rendering better service to the consumer and the customer shall not be penalized for the fault and breach of duties by opposite parties. The quantity assessed as per the criteria or average basis at 70.3 KL is also without any basis and factually incorrect. The demand for recovery on the alleged reason of arrears for a quite long period is also legally unsustainable on the ground of barred claim. The opposite party cannot enforce or demand the payment which has already became a stale claim. The conduct of opposite party is deficiency of service and unfair trade practice and hence the complainant is entitled to compensation for mental agony, service deficiency and unfair trade practice etc to the tune of 5,000 and also entitled to get declared the bill dated 16.06.2009 for 24,481 is void. Hence this complaint.
In pursuance to the notice issued by the Forum opposite parties appeared and filed version admitting that the complainant is a consumer with No. P2H/1287/D. But denied the averment that he is punctual in remitting water charge, in accordance with the consumption recorded from time to time. The complainant has been paying as per the amount shown in the provisional invoice card and he has not remitted the water charges as per actual consumption for the period of the disputed bill. The water charge for the period covered in the bill under question was not paid by the complainant and the advance paid was only provisional amount. Adjustment bills were not served to the complainant for the bill period due to lack of sufficient staff. Even if bills were not served earlier, the tariff in force at the time of consumption of water only is used for computing water charge. It is not based on the tariff prevailing at the time of issuing bill. No interest is levied for the amount due much earlier and the complainant is getting good advantage in terms of interest. Follow up actions are taken in terms of collection of water charges and hence this bill was issued. The statement that the purpose and interest of installing meter inter alia is to strike a balance consumption in par with the required quantity is applicable to the complainant also. Since the complainant has got access to the water meter is installed in his premises and he can always ascertain the consumption himself. The complainant has never enquired with the office regarding any bill or to ascertain the actual bill amount and it is stated in the provisional invoice card that the amount shown is only provisional. The customer meter card and provisional invoice card are always in the custody of the complainant and on several occasions, it was not made available to the meter reader by the maid servant saying that Doctor was not at home and hence the readings are not noted on the consumer meter card and the presence of a well at the complainant’s home does not mean that he was using minimum quantity of water supplied through pipe line of KWA and the consumption is always on the increase in summer months. The consumption by the consumer is ascertained based on meter readings taken from time to time and it is found that the average monthly consumption in most of the months is much more than that corresponding to the monthly amount remitted by the consumer based on his provisional invoice card. The amount with bill dated 16.06.2009 was arrived by calculating the water charge for the meter reading of consumption of water from 28.01.2004 to 31.05.2009. The amount paid by the complainant during this period was deducted from the total amount and issued bill for 24,481 on 16.06.09. Quantity of 70.3 KL/month is used for consumption of water charge only for 19.02.2009 to 24.04.09 based on actual consumption and for 24.04.09 to 31.05.09 as average consumption based on previous month and for the period from 01/2004 to 02/2009 the bill is prepared based on actual consumption per month. For all other period from 01/04 to 02/09 the bill is prepared based on actual consumption per month in respective months based on meter reading. The opposite party has not kept the matter pending willfully for a long period. The complainant has got advantage in terms of interest since the due amount is claimed at a later date. It is not correct to say that the opposite has charged higher tariff for the entire quantity spread over to five years. The disputed bill is prepared by using the water tariff at the time of consumption. For each monthly average consumption the tariff in force at the time of consumption is used for calculating the amount due for that month and the amount paid by the complainant is deducted from that amount. Failure to issue bill in time will not absolve the consumer from not paying the water charges for the water he has already consumed. The opposite party is performing his duties with due care and as per law and no negligence in service to the complainant. The complainant is not penalized in any manner and the average monthly provisional amount to be paid was informed to him much earlier and he has never approached the office for ascertaining any change in the rate eventhough he is consuming good quantity of water. On the basis of meter reading if the consumption exceeds the limit corresponding to the monthly average rate as per provisional voice card, it is only natural and lawful for the opposite party to issue arrear bill. The average consumption of 70.3 KL/meter is based on meter readings and the averment that it is without any basis is not correct and it is based on facts.
The claim is not barned by limitation. The complainant has been remitting a part of water charge at monthly rate and it is the part of amount of water charge for the quantity consumed by him. The opposite party has always provided good service and there is no deficiency of service. The complaint is filed with a view to avoid the payment of water charge which the complainant is legally bound to pay. There is no reason for claiming compensation and hence the opposite party is not bound to pay any compensation and hence the complaint is liable to be dismissed.
Upon the above pleadings the following issues have been raised for consideration.
1. Whether there is any deficiency of service on the part of opposite parties and whether the claim is barred by limitation?
2. Whether the complainant is entitled to any relief?
3. Relief and cost.
The evidence in the above case consists of the oral testimony of PW1 and DW1 and Exts. A1 to A5 and B1 to B5.
Issue No.1 :
The complainant contended that the bill issued by 1st opposite party dated 16.06.09 for an amount of ` 24,481 is barred by limitation since the demand of that alleged arrears is after a long period and hence it became a stale claim and hence the bill has to be declared void. There is deficiency of service on the part of opposite parties. Since they have not conducted periodical inspection and has not issued revised bills in every six months. In order to prove their contention they have produced documents like receipts dated 22.10.1997, 22.12.10, 18.01.02, 25.03.03, 23.03.04, provisional invoice cards disputed bill for ` 24,481. In order to disprove the contentions DW1 was examined and documents like meter reading from 10/97 to 06/09, meter reading print out, order with respect to water tariff issued by government, Revision order of water tariff dated 27.02.2009, order issued by KWA with respect to water charge renewal etc.
The complainant’s case is that the claim is barred by limitation since the arrear bill issued on 16.06.09 for ` 24,481 after a quite long period is legally unsustainable on the ground of barred claim. Admittedly the bill was issued to realize the arrears amount of water charge from 24.06.04 to 31.05.09. But it is a well settled, position that since the bill is issued for the continuing liability of the complainant and the complainant is a consumer continuously from date of connection the bill issued is sustainable as per law. In Carborandum Universal Ltd and others Vs Government of Kerala, which was reported in 1987(2)KLT SN.5, the Hon’ble High Court held that the fact that the board has realized their mistake now and issued bill after 3 year does not effect the power of the board to realize the arrears of duty from the consumer and does not effect the power of board to issue invoice and claim amount. The board is acting on behalf of the Government. So from the above discussion it is seen that the claim is not barred by limitation.
As per Regulation 13(d) of water supply regulation, an adjustment bill in Form NO.IX shall be issued once in every six months to consumer indicating the excess or short remitted by the customer. The opposite party admits that adjustment bills were not served to the complainant for the bill period due to lack of sufficient staff. This type of excuse cannot be tolerated by the consumer who is regularly paying his bills and if there lacks sufficient staff, it cannot be shouldered on the consumers. If the concerned officials had visited the premise and issued adjustment bills in every six months, it will not be a burden to a consumer. But instead of this issuing a huge bill of ` 24,481 all of a sudden to a customer after 4 years is definitely a heavy blow to the consumers. But water authority is continuously continuing this practice. So we are of the view that there is grave deficiency of service on the part of opposite party for not giving the adjustment bills in every six months and also in issuing a huge bill all on a sudden for which they have to compensate the complainant.
Since it is found that the bill dated 16.06.09 is not barred by limitation then the next question is what is the amount to be paid by the complainant. The complainant’s case is that he has family having only 3 members and a well graced with plenty of water and hence he uses both well water and water provided by opposite parties. Since there is an alternative water system he uses only bare minimum quantity of water. The opposite party also admits that the complainant has alternative water system. But according to opposite party he had used 4020 KL water for the period from 28.01.04 to 24.04.09 and out of the price of ` 26,447, the complainant has paid only ` 1966 and has to pay balance of ` 24,481 and for that amount they had issued the alleged bill inorder to substantiate their case the opposite party has produced Ext.B1 ie photocopy of meter reading recorded by the meter reader with respect to the complainant’s water connection from 10/97 to 06/09 and Ext.B2 is the consumer ledger. Eventhough the complainant has disputed the amount, he has no case that the meter is defective and he has not disputed any of the entries. But while going through Ext.B1, the consumption of water shown is highly irregular and abnormal increase of usage. This is not explained by the opposite party. But in order to prove his case, complainant has not taken any steps to prove the present reading in the meter which is in his premises. So there is no evidence before us to show that the meter reading shown in Ext.B1 is not correct. But as per Regulation 13(d) of the water supply regulations it is the statutory duties of the KWA to issue an adjustment bill in Form No. IX once in every six months to the consumer. It is the admitted case that there is no entry in the provisional invoice card issued to the customer. So it is found that there is grave deficiency on the part of KWA by issuing a huge bill which caused a heavy blow to the customer. Moreover it is admitted that the complainant is used to pay the water bill regularly and also in advance. So non-payment is not due to any fault on the part of the consumer, but it is due to the dereliction of duty on the part of the KWA. So the complainant cannot be subjected to the victim of such dereliction of duty of the opposite parties. So we are of the opinion that the opposite parties are liable to compensate the complainant for their deficient service and hence the complainant is entitled to get reduced the alleged bill and hence we direct the opposite party to reduce the amount of the bill by 50% of the alleged bill and allow the complainant to pay the amount in two installments. Orders passed accordingly.
In the result complaint is allowed partly directing the opposite party to issue fresh bill by reducing the alleged Ext.A4 bill by 50% and allow the complainant to pay the amount in two installments. Opposite party has to comply the order within 30 days from the date or order, otherwise the complainant can execute the order as per the provisions of Consumer Protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Receipt issued by K.W.A. dated 22.10.1997.
A2(1). Receipt issued by K.W.A. dated 22.12.00.
A2(2). Receipt issued by K.W.A. dated 18.01.01
A2(3). Receipt issued by K.W.A. dated 25.03.03
A2(4). Receipt issued by K.W.A. dated 23.03.04
A3(1) to (3). Provisional Invoice card.
A4. Consumer bill dated 30.06.09.
A5. Provisional invoice card.
Exhibits for the opposite parties
B1. Meter reading letter dated 05.01.10.
B2. Meter reading print out (4 pages)
B3. Order with respect of water tariff issued by KWA.
B4. Order with respect to water tariff.
B5. Order of water charge renewal.
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
DW1. Ramesan Koyilotan
/forwarded by order/
SENIOR SUPERINTENDENT
