Act for an order directing the opposite party to cancel the assessment order dated 13.04.09 addressed to late Pattamma Kuruvila and to drop further proceedings in connection with the said order in respect of consumer 7818 under Edoor Electrical Section and to pay ` 5000 as compensation together with the cost of this proceedings.

          The brief facts of the case of the complaint are as follows :  Complainant is in possession of two shop rooms 339A + 339B as a tenant.  Pattamana Joseph, S/o. Pattamana Kuruvila is the owner of the shop rooms.  He is enjoying the electricity supply provided to the said room No.339 in the name of late Pattamana Kuruvila, the father of the present land lord.  The consumer No. is 7818. Electricity meter is installed in the said room and proper concealed wiring is done in both the rooms by the original land lord.   Prior to the occupation of the building by complainant a provisional store was being run in the said shop room by another tenant by using room No.339B as godown and the erst while tenant had long back disconnected the electricity supply to room No.339B as per the instruction of KSEB officials on the ground that electricity meter is provided only in room No.339A.  Complainant started photocopying centre cum  Telephone in room No.339A on 12.11.08 and he stored the old type writing machines and an old defective Photostat machine along with some waste materials were stored in Room No.339B.  On 17.11.08 2^nd opposite party inspected the premises and made some illegal demands and since the complainant did not agree he prepared a Site Mahazar and compelled to sign the same. Though resisted complainant was constrained to sign the false statement wherein it was written that the complainant is using 2 photostat machines having capacity of 1500 watts each one in Room No.339A and another in 339B.  On 27.12.08 opposite party issued a provisional assessment order to complainant in the name of Kuruvila directing to pay ` 80,620 towards penalty.   In pursuance of memorandum 1<sup>st</sup> and 2<sup>nd</sup> opposite party along with higher officials inspected the premise again and found that complainant has never used electricity in Room No.339B and the respondents took initiative to refer the dispute in the adalath conducted on February, 2009.  In Adalath it was convinced that the order of 2<sup>nd</sup> opposite party was illegal and arbitrary and as a conciliatory measure complainant was asked to pay a sum of ` 2,684 with liberty to pay the same by way of 6 instalments and accordingly a revised bill dated nil was issued during February 2009 by 1^st opposite party.  Immediately after Adalath 1^st and 2^nd opposite party demanded the complainant to pay illegal gratification to them and threatened him that unless he comply their demand additional penalty bill will be issued to the complainant again.  Complainant have already remitted a sum of `1611 towards part of the reduced penalty.  After the adalath the tariff changed from VII B to VII A and accordingly complainant paid subsequent electricity bill without any default.  In the month of March 2009, 1^st opposite party served another provisional assessment order under Section 126 of Electricity Act, 2003 under the guise that the complainant is using unauthorized additional load and doing unauthorized looping of electricity to room No.339B.  He has not conducted any site inspection or issued any Site Mahazar to the Complainant, though alleged that he had conducted inspection on 28.01.2009.  He passed final order on 31.03.2009.  There was no such case against complainant during the adalath already conducted in the month of February, 2009.  The order was made under wrong assumption.  Even after hearing upon complainant 1^st opposite party passed final order only as the revenge.   1^st and 2^nd opposite parties are famous for their harassment to various consumers.  There was even news published in Rashtradeepika Daily on 13.05.09 regarding the illegal activity of 1^st and 2^nd opposite party.  Complainant submitted a complaint to the Deputy Chief Engineer but no proper enquiry made complainant received a letter dated 14.05.05 directing him to prefer an appeal by paying 50% of the bill amount before the respondents.   The impugned order dated 13.04.2002 as per so illegal.  There is no looping of electricity.  Complainant suffered much agony on account of the harassment of 1^st and 2^nd opposite party.  Hence to allow the complaint.

          Pursuant to the notice opposite parties made appearance and filed joint version in the form of counter statement.  The brief contents of the version are as follows:  Room No.339B is using as a photocopying centre by using photostat machine having a capacity of 1500 watts and working properly.  Complainant was issued a provisional assessment order on 27.12.2008 for an amount of ` 80,621 on the basis of the inspection conducted on 17.11.2008. On 08.01.2009 complainant filed an objection with some proof that he has started the Photostat cum telephone booth only and the unauthorized use of electricity is only for a small period ie from 12.11.2008 to 17.11.2008.  So the final assessment order is for an amount of ` 2684.  This was as per the final order of assessing officer and not as per the decision taken in the Adalath conducted on 10.02.2009.  As per the assessment order dated 27.12.2008 it was informed that the unauthorized load should be removed or regularized immediately otherewise penalty shall be imposed until the removal or regularization.  But on inspection on 28.01.09 it was found unauthorized additional load was neither removed nor regularized.  Provisional assessment order again issued on 30.01.2009 for amount of `15316 to the complainant through the building owner.  A personal hearing was conducted by the Assessing Officer on 31.03.2009 to file objection if any.  After the hearing final assessment order issued on 13.04.2009.  Disconnection notice was issued on 29.11.2009.   There is no deficiency in service on the part of opposite parties.  Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1.     Whether there is any deficiency on the part of opposite party?

2.     Whether the complainant is entitled for the remedy as prayed in the complaint?

3.     Relief and cost.

The evidence consists of the oral evidence of PW1, PW2, DW1, Ext.A1 to A20, Ext.C1 and Ext.B1 to B6.

Issues No.1 to 3 :

          Admittedly complainant is in possession of two shop rooms 339A and 339B as a tenant.  Opposite party issued a provisional assessment order on 27.12.2008 for an amount of `80,621 on the basis of inspection conducted on 17.11.2008 in the premises of complainant.  The amount was subsequently reduced to 2684.  On 30.01.2009 another provisional order issued for an amount of  ` 15,316. Final assessment order issued on 13.04.2009.  Disconnection notice was issued on 29.11.2009.

          The case of the complainant is that he was started photocopying centre cum telephone booth in room No.339A on 12.11.2008 and he stored the old type writing machines and an old defective Photostat machine along with some other waste materials were stored in room No.339B.  On 17.11.08 2^nd opposite party inspected the premises and made some illegal demands.  But he did not agree.  As a revenge he prepared a site mahazer and obtained signature on the threat of disconnection.  On 27.12.2008 opposite party issued provisional assessment order for ` 80,620 towards penalty.  In pursuance of memorandum respondents took initiative to refer the dispute in the adalath and as a result of conciliary measures complainant was asked to pay a sum of ` 2,684.  After adalath 1^st and 2^nd opposite party demanded the complainant to pay illegal gratification and threatened him again imposing penalty.   Thereafter without conducting site inspector and issuing site mahazer with allegation of using unauthorized addition load and looping of electricity he passed final order on 31.03.2009.  It was a harassment.  Though complaint was lodged, no proper enquiry was made.  But complainant received a letter dated 14.05.2005 with direction to prefer appeal by paying 50% of the bill. The impugned order is illegal and there was no looping of electricity.

          The case of the opposite party on the other hand is that complainant had used Room No.339B as a photocopying centre by using Photostat machine having a capacity of 1500 watts.  On the basis of inspection assessment order issued for ` 80,621.  Complainant filed objection stating that unauthorized use was only a small period and this final assessment order issued only for an amount of ` 2,684 by the assessing officer.  It was not a decision of Adalath.  As per the above final assessment order it was also informed to remove or regularizes the unauthorized load or otherwise penalty shall be imposed.  But in the inspection on 28.01.2009 it was found additional load was not removed.  Thus provisional assessment order issued again on 30.01.2009 for an amount of 15,316 on 31.03.2009 a personal hearing was conducted and after hearing, final assessment order was issued.

          Complainant adduced evidence by way of chief affidavit in tune with the pleadings.  Complainant admitted that both rooms 339A and B has been under his possession.  He has stated that the electricity connection in Room No.339B had already been disconnected on the reason that there was no separate meter which was found on inspection.  Thus the old tenant himself removed the entire wiring system before the occupation of the complainant.  Complainant further stated that there was electricity only in Room No.339A at the time when complainant occupied the building.  He has started business only on 12.11.2008.  Room No.339B had been used only as a godown for keeping defective and old goods.  The defective old Photostat machine also kept therein.  Complainant also stated as follows : Opposite party inspected on 17.11.2008 and demanded an illegal sum. Since it was rejected opposite party prepared mahazar and enforced him to sign threatening him of disconnection if not.  So he was constrained to sign the Mahazar wherein written false statement.  But on consideration of complainants, complaint and request re-inspection was conducted.  During the re-inspection the officials found complainant did not use electricity in room No.339B and referred the matter before Adalath.  On the basis of that officials were convinced the order was illegal during the adalath conducted on 10.02.2009.  As a matter of settlement direction was given to pay a sum of 2673 by instalments.  The tariff applicable to the said connection was changed to 7B to 7A in the adalath.  After the settlement of the above said dispute during March they have issued another assessment order under Section 126 on the ground of unauthorized use of electricity in 339B.  It was done without any inspection or notice. On the basis of complaint by the complainant hearing was conducted in the presence of 1^st and 2^nd opposite party but not considered the grievances and usual final order.  The order was issued in the name of a dead person which itself make the order unsustainable.

Ext.A4 provisional assessment order issued by Sub-Engineer in charge electrical section Edoor U/s 126(2) of Indian Electricity Act, 2003 shows ` 80,621 as net amount to be submitted.  In the cross examination PW1 deposed that the adalath was conducted in Iritty on 10.02.2009.  He has also deposed that complainant was allowed in the Adalath to pay the reduced amount in instalments.   Complainant answered in another question that at the time of inspection he was asked to give ` 15,000 as bribe but made clear that no complaint was lodged before police or Vigilance though complained before KSEB.  DW1  in his affidavit denying that the contention of complainant that the bill was reduced in Adalath.  Opposite party’s contention is that it is concocted for the purpose of the case.  But opposite party stated in chief affidavit thus : “]cm-Xn-¡m-c³ Bh-i-y-s¸-«Xv {]Imcw 10.02.09-þsâ AZm-e-¯n taÂ]-dª 2684 cq]¡v KUp-¡Ä A\p-h-Zn¨p.”  Ext.A9 issued to complainant.  The order issued to complainant do not bear the date of issue whereas Ext.B1 produced by opposite party of the same order seen dated 29.01.2009.  It is pertinent to note that complainant has pleaded in the complaint that the revised bill was dated “nil”.  Opposite party has no explanation for that.  Further opposite parties has no case that Ext.A9, the copy of the revised bill produced by complainant is one that is not given by the opposite party.  In cross examination also no question put to the witness in respect of this aspect.  Marking of Ext.A9 also has not been objected.  That means Ext.A9 produced by complainant is one, which was delivered by the opposite party, especially in the light of specific pleading by the complainant that the revised bill dated nil.  This contradiction Ext.B1 having dated but A9 having dated nil compels to verify and observe the documents further so as to ascertain whether it is one and the same.  It can be seen in Ext.A9 order portion in the last but third line the striking of the word “Rupees” seen put initial but at the same time this initial is totally absent in Ext.B1.  Moreover it is also seen written “2684/5 KUp ” at the bottom right side of Ext.B1.  This is a case in which complainant contended that the amount was reduced in adalath.  Opposite party has the case that the order of reduced bill was issued earlier than the Adalath.  In such a  case if the document Ext.B1 claimed to be the copy of the order of reduced bill contains any extra endorsement opposite party is bound to give an explanation to that why the initial seen on Ext.B1 is absent in Ext.A9 is also neither explained nor challenged in any manner. Hence the suspicion in respect of date initial and entry of instalment and the amount etc are indication of some sort of manipulation intent to create impression that the reduced bill was issued before the Adalath. It is pertinent to note that opposite party did not produce the proceedings of the adalath held on 10.02.2009 in Iritty.   If that was produced the real truth would have been revealed.   Opposite party could easily establish their case that reduced bill was issued before conducting the Adalath.  But opposite party did not take care to produce that document.   This conduct leads to assume that the decision to reduce the amount was taken from the adalath as pleaded by the complainant.

The opposite party issued the impugned bill to complainant in the month of March, 2009.  That was (Ext.B3) dated 30.01.2009 which was one day after the issuance of Ext.B1 if the contentions of opposite party accepted. B1 is seen issued on 29.01.2009.  On 29.01.2009 reduced the amount to 2684 from ` 80,620 and the very next day issue another bill for ` 15,316 looks a sort of unfairness on the part of opposite party. Opposite parties contended that the property was inspected on 28.01.2009 and it was on the basis of inspection that Ext.B1 was issued on 29.01.2009.  On 28.01.2009 inspection conducted for the second time and the final order on previous bill issued earlier reducing the amount from `80,620 to ` 2684 and the very next day opposite party pleased to issue again a new penalty bill for 15,316 seem to be unfair and unjust.  If opposite party has good case they have to produce the proceedings of the Adalath to find out what was truly considered there.  That is a document very material in connection with the subject matter to dig into the state of affair actually taken place.  Such a document readily available in the hands of opposite party if not produced before the Forum it can only be considered that opposite parties are least bothered about bring out the truth before the Forum which is clear indication of unfair dealings on the part of opposite parties.

It can be seen the second provisional amount order Ext.A.10 dated 30.01.2009 is issued showing ` 15,316 as net amount to be submitted.  The final order on 13.04.2009 was issued by Sub Engineer in charge, Electrical section, Edoor.  The order Ext.B3/A 10 was issued in consonance with section 126(3) Indian Electricity Act, 2003. But at the same he is not empowered to issue such assessment order under Section 120 (3).  Complainant has raised the allegation that 1^st opposite party is not at all authorized to pass an assessment order under Section 126 of the said Act as per law.  Opposite party did not challenged this allegation of complainant.  The order dated 06.11.1988 relating to conditions of supply of Electrical Energy quite clearly states that the Assistant Executive Engineers shall issue proceedings to this effect. (Issued under B.O.No.3429/98(Plg.com.2639/98) pub in K.G.Ex.1873 dated 16.11.1998) in the light of this order of the Board.  The impugned final order issued by 1^st opposite party cannot be considered as per proper and legal.

Ext.C1 is the expert report.   The report shows that there was no electricity connection in Room No.339 B.  He has also reported that he could fixed that Room No.339B was a store room.  At the time of inspection of the Expert Commissioner Electrical Sub Engineer was present at the spot.  They have not given any work memo.   On the report also it is not seen reported that he has requested anything to be noted in respect of the alleged rooms.   There is no reason to discard what is reported by the Expert Commissioner.

Ext.B5 is the minutes of the hearing held on 31.03.2009.  The entire minutes if examined it can be seen that there is nothing feeded to enter into a conclusion that the photostat machine had been functioned in Room No.339B.  Even the purpose for which the hearing was conducted has not been reflected in the minutes.  It is nothing more than that of recording of some questions and answers.   It is in no way helpful to justify the actions of opposite parties or else to prove the contentions of opposite parties.  It is nothing but a hearing for the sake of hearing.  The answers given by the complainant if considered, opposite party cannot make charge against complainant.  What is considered in the hearing is not understandable on going through the minutes.   It is produced only to show that they were conducted a hearing on the subject.  How far the hearing contributed to find the elements of truth is not in any way revealed.

In the light of the above discussion we are under the impression that the entirety of the facts and circumstances shows there is unfairness in the dealings of opposite party and thereby caused deficiency in service in issuing the impugned order.  Thus we are of opinion that opposite party is liable to cancel the assessment order dated 13.04.2009 addressed to late Pattamana Kuruvila.  In the absence of evidence with regard to the actual damage suffered by the complainant there is no scope for allowing compensation.   Anyhow opposite party has to pay an amount of ` 500 as cost of this proceedings.  Thus issues No.1 to 3 are found partly in favour of complainant.

In the result, the complaint is allowed partly directing the opposite party to cancel the assessment order dated 13.04.2009 addressed to late Pattamana Kuruvila in respect of consumer 7818 and to pay ` 500 (Rupees Five Hundred only) as cost of this proceedings within one month, failing which complainant is entitled to execute the order as per the provisions of Consumer Protection Act.

                           Sd/-                    Sd/-                     Sd/-

President              Member               Member

APPENDIX

Exhibits for the Complainant

A1.  Copy of lease agreement.

A2.  Copy of notice regarding inauguaration.

A3.  Site Mahasser.

A4.  Provisional Assessment Order.

A5.  Copy of complaint before KSEB.

A6.  Copy of complaint before KSEB dated 06.01.09.

A7.  Copy of complaint before KSEB dated 20.01.09.

A8.  Complaint before KSEB dated 27.01.09.

A9.  Revised provisional assessment order.

A10. 2^nd assessment order dated 30.01.09.

A11. Copy of complaint to Deputy C.E., KSEB dated 24.02.09.

A12. Copy of complaint to E.E. Iritty, KSEB dated 17.04.09.

A13. Final assessment order made by 2^nd OP dated 13.04.09.

A14. Copy of bill dated 17.04.09.

A15. Copy of bill dated 12.02.09.

A16. Copy of bills (3 in number).

A17. True copy of complaint before Chief Minister and others dated    

        07.05.09.

A18. Copy of bill dated 17.04.09.

A19.  Post card dated 05.02.09.

A20.  Revised bill dated 22.04.09.

Exhibits for the opposite party

B1.  Order issued by KSEB Edoor Section in favour of complainant dated  

       27.12.2008. 

B2.  Report prepared by Assistant Engineer Edoor Section dated 

       28.01.2009.

B3. Provisional Assessment order issued by KSEB Edoor dated 13.01.09.

B4. Disconnection notice issued by KSEB Edoor dated 29.04.09.

B5. Minutes of Hearing of KSEB, Edoor dated 31.03.09.

B6. Details of complaints received for Adalath – Electrical Section, Edoor.

Exhibits for the Court

Commission report.

Witness examined for the complainant

PW1.  Complainant.

PW2.  Pradeepkumar T.M.

Witness examined for opposite party

DW1.  Pramodkumar K.K.

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT