Sri. P. Satheesh Chandran Nair (President):
The complainants filed this complaint against the opposite parties for getting a relief u/s.12 of the C.P. Act 1986.
- The case of the complainant is as follows: The complainant is the proprietor of a tourist home in the name and style ‘Fathima Tourist Home’ at Adoor. The complainant applied for a non domestic water connection to the 2nd opposite party by remitting Rs.560/- and on 09/08/2012 the 2nd opposite party granted water connection to the complainant vide consumer No.ADR/2101/N. The complainant stated that he is running this tourist home for his livelihood. It is contended that on 30/10/2015 the 2nd opposite party issued a bill for an amount of Rs. 3,858/- for 4724KL meter reading. On 30/10/2015 the 2nd opposite party again issued another bill for an amount of Rs.1,18,836/- for a meter reading of 4990 KL. According to the complainant he is mainly depending a well in the premises of tourist home for the uses of water. It is further contended that the bill Nos. stated above are so exorbitant and also incorrect. Therefore the complainant is not liable to pay any amount to the opposite parties. It is further contended that the act of the opposite parties caused much mental agony and suffering to the complainant and the act of the opposite parties are clearly comes under the deficiency in service which is defined in Consumer Protection Act 1986. Therefore the complainant filed this complaint to set aside the bill dated: 30/12/2015 for an amount Rs. 1,18,836/- compensate cost, etc., etc.
3. This Forum entertained the complaint and issued notice to opposite parties for their appearance. The opposite parties entered appearance before the Forum and filed their version as follows. According to the opposite parties the case is not maintainable either in law or on fact. It is contended that the water connection of the complainant is a non domestic connection and he is running the tourist home only for commercial purposes. There was a prior water connection to the complainant and the said connection was disconnected due to the non-payment of the arrears which was realized by the opposite parties by revenue recovery proceedings. The following are the details of meter reading and it dates.
1. 09/08/2012 - 0.43 KL
2. 08/03/2014 - 219 KL
3. 30/08/2015 - 457 KL
4. 30/10/2015 - 4724 KL
5. 31/12/2015 - 4990 KL
6. 29/02/2016 - 5073 KL
7. 30/04/2016 - 5158 KL
It is further contended that due to the computerization process of Kerala Water Authority, Pathanamthitta Sub Division (04/2014 to 10/2015) opposite parties did not issue bill on meter reading on that time. This contesting opposite parties again contended that the bill issued on 30/12/2015 for Rs. 1,18,836/- is correct and purely issued after computerization. It is stated that the said bill including water charge for 18 months from 01/03/2014 to 30/08/2015 (an average monthly charge Rs.3,858/-) plus water charge from 31/08/2015 to 31/12/2015. It is further contended that if the consumer fails to remit the water charges in time, a fine as laid down in Kerala Water Authority (water supply) regulation 1991 shall be imposed for the default. It is further contended that the complainant herein is a defaulter from 17/03/2014 onwards. It is stated that even though the complainant defaulted the payment the opposite parties did not disconnect the connection so far. Hence there is no deficiency in service or unfair trade practice on the side of this opposite parties as alleged by the complainant. Therefore this opposite parties prayed to dismiss the compliant with cost.
4. The Forum peruse the complaint version and records before us and framed the following issues for consideration:
- Whether the complaint is maintainable before this Forum?
- Whether the opposite parties committed any deficiency in service against the complainant?
- Regarding the relief and costs?
5. In order to prove the case of the complainant, complainant he who filed a proof affidavit in lieu of chief examination and he is examined as PW1. Through the PW1 Ext.A1 to A4 also marked. Ext. A1 is the Power of Attorney issued by the complainant. Ext.A2 is the copy of bill dated 30.10.2015. Ext.A3 is the bill dated: 30.12.2015. Ext.A4 is the notice dated 17.08.2016. On the other side DW1 filed a proof affidavit in lieu of chief examination and no documents were marked at the time of the examination. After the closure of evidence we heard both sides.
6. Point No.1: The opposite parties seriously contended that this case is not maintainable before this Forum since the complainant’s water connection is comes under non domestic category and the water is used for the necessities of the tourist home. The said tourist home is used by the complainant for earning money and it can be considered as a commercial business. On the other side the complainant PW1 pleaded in the complaint and deposed before the Forum in chief examination that he is running this tourist home only for his livelihood. When we appreciate the whole evidence of this case it can be seen that the opposite parties are failed to convince this Forum that the complainant is running this tourist home for commercial purpose. It is deposed that PW1 compliant has got income from this tourist home and it is used for his livelihood. It is also proved that the complainant has availed water connection from the opposite parties for the purpose his establishment and he paid installation charge and monthly subscription to the opposite parties for their service. Therefore it can be inferred that the complainant is a consumer of opposite parties and opposite parties are service providers of the complainant. Therefore we find that the case is maintainable before this Forum and the Forum has got right to entertain this compliant. Hence Point No.1 found accordingly.
7. Point Nos. 2 and 3: For the sake of convenience, we would like to consider Point No.2 and 3 together. In order to establish the case of the complainant, complainant adduced evidence to the effect that he has taken the water connection to his building and paid subscription without any failure up to the last bill time 31/12/2015. The complainant executed a power of attorney in favour of PW1 and he who filed proof affidavit for and on the behalf of the complainant herein. The power of attorney is marked Ext.A1 in this case. Ext.A2 is a copy of the bill dated:30/10/2015 for an amount of Rs. 3,858/-. The complainant is not challenging the genuineness of Ext.A2. As stated earlier the bill dated: 30/12/2015 for an amount of Rs. 1,18,836/- is in question before this Forum and the complainant filed this case to set aside the said bill. The bill dated: 30/10/2015 for Rs.1,18,836/- is marked as Ext. A3. When we go through Ext.A3 it shows that the said bill is issued on 30/10/2015 and the meter reading on the date of issuance of the bill dated: 11/01/2016 is 4990 KL. It also shows that the meter reading of 30/10/2015 is 4724KL. On the basis of this meter reading we can calculate that (4,990-4,724) 266 KL water was used by the complainant for nearly 71 days (i.e., more than two months). When we refer Ext. A4 it is to be understood that the said bill is issued on 17/08/2016 for an amount of Rs. 1,39,650/-. No doubt the said bill Ext.A4 was issued after the institute on this of case before this Forum. The amount shown in Ext. A4 is including the amount shown in Ext. A3. Therefore when we are deciding the main issue in question with regard to the Ext.A3 bill there is no importance with regard to Ext.A4 bill at this stage. It is true that when PW1 is cross - examine by the learned counsel for the opposite party he challenged the genuineness of the contention of the use of the tourist home for his livelihood. He answered in-cross “ADR/2101/N എന്ന water connection ഈ tourist home ന് മാത്രമായി ഉള്ളതാണ്. മുറികൾ വാടകയ്ക്ക് നൽകി rent വാങ്ങുന്ന business ആണ് അവിടെ ചെയ്തുവരുന്നത്. 25 മുറികൾ ഉണ്ട്. He adds എൻറെ സ്ഥാപനം commercial purpose ഉള്ളതായതിനാൽ case Forum മുമ്പാകെ നിലനിൽക്കില്ല എന്നത് എനിക്കറിയില്ല.”. In the light of the answer given by the PW1 there is no evidence to see that the complainant used this tourist home for any commercial purposes. If it be so the opposite parties can adduce evidence in records or adduce any positive evidence to substantiate their case. PW1 again answered in-cross “ഈ complex ൽ മറ്റു കടകൾ hotel, fish stall and bank ഉണ്ട്. ടി സ്ഥാപനങ്ങൾക്ക് ഒന്നും പ്രത്യക water connection ഇല്ല അവരും ഈ connection ലെ വെള്ളം ഉപയോഗിക്കുന്നു എന്നത് ശരിയല്ല”. When we evaluate the evidence of PW1 it can be seen that so many shops are also functioning in the Tourist Home. It is also come out in evidence that there is no other water connection for the establishment. If so we cannot rule out the possibility of using more water by the complainant. When we examine the deposition of DW1 we can see that his proof affidavit in lieu of chief examination is more or less as per the tune of his version. At the time of the cross-examination DW1 answered “(A) version- ൽ kiloliter ആയിട്ടാണ് എഴുതിയിരിക്കുന്നത്. ഒരു kiloliter- ന് water charge എങ്ങിനെയാണ് കണക്കാക്കുന്നത് (A) എനിക്ക് രേഖ നോക്കാതെ ഉത്തരം പറയാൻ സാധിക്കില്ല. 50 kiloliter വരെ Rs. 632/- ആണ് 50 kilo liter ന് ശേഷമുള്ള ഉപഭോഗത്തിന് Rs. 25/per kilo liter BWv. September 2014 വരെയാണ് ഈ rate. September 2014 ന് ശേഷം rate മാറിയിട്ടുണ്ട്. 50 kilo liter വരെ Rs. 1,100/- ഉം 50 kiloliter ന് ശേഷം Rs. 40/- per kiloliter. ഇപ്രകാരം charges മാറ്റം വന്നു എന്ന് കാണിക്കുന്നതിന് എന്തെങ്കിലും രേഖ ഹാജരാക്കിയിട്ടുണ്ടോ (A) ഇല്ല. meter reading ൻറെ അടിസ്ഥാനത്തിൽ ആണ് bills, issue ചെയ്യുന്നത്”.
8. In the light of the deposition of DW1 we can be inferred that even DW1 is doubtful with regard to the change of the water charge and he has not been produced any document in this aspect. When we examine his answers with regard to the actual bill and spot bill it also arises certain suspicion about the genuineness of the calculation and issuance of the bill. However it is to be understood that the complainant’s tourist home is having 25 rooms and some establishments are functioning in that tourist home. It is also come out in evidence that the opposite parties water connection is the only source of water to the complainant’s tourist home. Anyway as discussed earlier the opposite parties are not succeed to prove the calculation of Ext. A3 bill was in accordance with the law and procedure which is described in Kerala Water Authority (Water Supply) Regulations, 1991 Section 15 reads “Complainants if any, regarding the nature and/or accuracy of the water charges demanded, shall be made in writing to the Assistant Executive Engineer within 20 days of the delivery of the bill or receipt of the slab card as the case may be (b) The Authority to exercise a revision of water charges in the demand bills already made and the corresponding corrections in water revenue accounts and ledgers shall be the Executive Engineer and in all such cases of revision of water charge demands already made, the decision of the Executive Engineer shall be final. Provided that clerical or other accounting errors found in the water charges demands and bills already made, shall be corrected by the Assistant Executive Engineer with necessary corrections in the ledger Accounts and records”. As per Sec.15 if there any complaint regarding the nature or accuracy of the water charges demanded the aggrieved can file a petition before the Assistant Executive Engineer within 20 days of the delivery of the bill. Here it is to be noted that the limitation period is over and the complainant filed a complaint before this Forum to redress the grievances. Moreover the complainant prayed to set aside the operation of Ext. A3 bill which was prepared by the Assistant Executive Engineer concerned. As per Section 15(b) of the above regulation the Executive Engineer concerned is the authority to exercise a revision of water charges in the demand bills which was issued by the Assistant Executive Engineer concerned. It is also proved that the complainant has neither filed any objection nor pleaded anything against the correctness of the water meter installed in his premises. It can be inferred that in the instant case the complainant directly approached this Forum to set aside Ext. A3 bill which was issued by the opposite parties. If an efficuous and alternate remedy is available as per the above regulations the complainant ought to have availed that remedy before approaching a court of law. This Forum can grant relief to a complainant only when the complainant proved a clear deficiency in service or unfair trade practice against the opposite parties. In the instant case, the opposite parties did not succeed to prove that the Ext.A3 bill was issued in accordance with the regulations described in Kerala Water Authority (Water Supply) Regulations 1991. Therefore, we find that the bill issued by the opposite parties dated: 31/12/2015 for an amount of Rs. 1,18,836/- has to be set aside until the final bill issued as per Section 15(a)(b) of Kerala Water Authority (Water Supply) Regulations, 1991. On the basis of the above discussion and finding Point No.2 and 3 are also found accordingly.
9. In the result, we pass the following orders:
- The bill issued on 30/12/2015 for an amount of Rs.1,18,836/-
(Rupees One Lakh Eighteen Thousand Eight Hundred
and Thirty six only) which is marked as Ext. A3 herein is set
aside till the Executive Engineer concerned of Kerala Water
Authority passed an order under Section 15(b) of KWA
(Water Supply) Regulations 1991.
(2) The opposite parties 1 and 2 are directed to place Ext. A3 cash
bill before the Executive Engineer, Pathanamthitta for invoking
the review power under Section 15(b) of Kerala Water Authority
(Water Supply) Regulations 1991.
- Considering the nature and circumstances of the case, no order
for cost or compensation.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 31st day of May, 2017.
(Sd/-)
P. Satheesh Chandran Nair,
(President)
Smt. Sheela Jacob (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Kiran C Nair
Exhibits marked on the side of the complainant:
A1 : Power of Attorney issued by the complainant.
A2 : Copy of bill dated 30.12.2015.
A3 : Bill dated: 30.12.2015.
A4 : Notice dated 17.08.2016.
Witness examined on the side of the opposite parties:
DW1 : A. Kunjumon
Exhibits marked on the side of the opposite parties: Nil
(By Order)
Copy to:- (1) Mohammed Hashim, Puthen Bunglow,
Pathanapuram P.O, Pin – 689 695.
(2) Managing Director, Kerala Water Authority,
Thiruvananthapuram 695001.
(3) Assistant Engineer, Kerala Water Authority, Adoor.
(4) The Stock File.
